The German government will end its contract with Verizon. Brazil dumped Boeing for Swedish company Saab to replace its fighter jets. Sources told Bloomberg News “The NSA problem ruined it” for the U.S. defense contractor.
Unfettered NSA spying has cost U.S. companies up to $180 billion in lost overseas business. The number is expected to grow.
Cisco saw a ten percent drop in overseas business. Dropbox and Amazon Cloud Services reported immediate drops in their sales abroad. Qualcomm, IBM, Microsoft, and HP all reported declines in sales in China due to NSA spying. The total costs to U.S. businesses could reach as high as $180 billion.
ServInt Corporation, a Virginia-based company providing website hosting services, has seen a 30 percent decline in foreign customers since the NSA leaks began in June 2013, said Christian Dawson, its chief operating officer.
Big Losses for U.S. Tech Firms
According to a new report by the nonprofit New America Foundation, in total NSA spying could slow the growth of the U.S. tech industry by as much as four percent in the short run, though the massive hit to American credibility could have long-range repercussions that are hard to estimate at present. The NSA spying is leading many nations to develop their own, indigenous capabilities that suggest fewer opportunities for American tech firms into the future. For example, Brazil and India are planning domestic IT companies that will keep their data centers within national boundaries and thus hopefully out of NSA’s reach. Greece, Brunei, and Vietnam have announced similar plans.
The point really stings: cloud storage services are already a $150 billion industry, a number expected only to grow. The question now is how much of that growth for American companies will be siphoned off by foreign competition because of the NSA’s wholesale spying. One-third of Canadian businesses said in a survey they were moving their data outside the U.S. as a result of NSA spying. Artmotion, a Swiss web hosting provider reported that within a month after the first revelations of NSA spying, business jumped 45 percent.
You’re an American Company? No, Thanks
“We’re not an American company” may prove to be a decisive sales point, and the NSA activities a persuasive marketing tool. The point is not theoretical. “Ties revealed between foreign intelligence agencies and firms in the wake of the U.S. National Security Agency affair show that the German government needs a very high level of security for its critical networks,” Germany’s Interior Ministry said in a statement about the canceled Verizon contract.
While the NSA likely is even now working on ways to break into foreign data centers, the immediate concern for many governments abroad is the “sharing” agreements NSA enjoys with American firms. As revealed by Edward Snowden, most American tech companies are required by the U.S. government to make themselves open to the NSA, either by directly sharing data (for example, Verizon) prepackaged to NSA needs, or by allowing the NSA to dictate what technological back doors will be built into the actual hardware (Cisco.) Either way, in the minds of many foreign governments, purchasing goods or services from an American company is the equivalent of exposing by default all data that passes through those goods or services to the American government.
“I can’t imagine foreign buyers trusting American products,” said security expert Bruce Schneier. “We have to assume companies have been co-opted, wittingly or unwittingly. If you were a company in Sweden, are you really going to want to buy American products?”
Corrupting the Entire Internet
The New America report also explains that the NSA has fundamentally attacked the basic security of the Internet by undermining essential encryption tools and standards, inserting backdoors into widely-used computer hardware and software products, stockpiling vulnerabilities (“zero day defects”) in commercial software rather than making sure those security flaws get fixed, dropping spyware into routers around the world, impersonating popular sites like Facebook and LinkedIn to gather data, and hacking into Google and Yahoo’s backbone data links to harvest emails, address books and more.
This all in spite of one of the core missions of the NSA being to protect America’s cybersecurity.
A Wake Up Call?
The cynical might say that with the loss of business revenues abroad, the American government finally has a reason to reign in the NSA, at least overseas. Tech companies, after all, are traditionally big political donors, especially to the Democrats and thus hold some clout. Domestically, there is little financial incentive for less spying; remember, the only person on earth Obama has personally and specifically assured is not being monitored via her cell phone is a foreigner, German Chancellor Angela Merkel. No, sorry, Americans are still fair game.
Perhaps the worst news for American tech is hardest to quantify. “It’s not possible to put an exact dollar figure on the cost of lost business for U.S. companies as a result of the NSA revelations,” said Chris Hopfensperger, policy director for BSA/The Software Alliance, a Washington-based trade association. “If a customer goes directly to a non-U.S provider for something, you never know that you didn’t get the call.”
Funny, because while the American company may indeed never know they didn’t get the call, the NSA might. Who could have thought the wake up call to U.S. firms would be so ironic?
Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
A sordid feature of 19th century Victorian life was the debtor’s prison.
People who could not pay their financial debt simply went to prison, punishment for not being wealthy. The point was often muddied, as from inside jail a person could most certainly not earn any money to pay off the debt, though one supposes the rich chortled knowing those who stiffed them suffered for the act. It was kind of a thing to do back then. The prisons, chronicled most famously by Charles Dickens among other Victorian crimes against a just society, were a step from Roman and Greek days when debtors could become the actual bonded slaves of the people to whom they owed money.
Debtor’s prisons were from Colonial days through the early 1800s a feature of American life, until enlightened societal views (yeah, slavery took a bit longer to sort out) and new bankruptcy laws pushed them from the scene. State-by-state the practice of locking people up to punish them for owing money generally faded; Kentucky did away with it in 1821, still-business friendly Virginia dragged its feet until 1849. Between 1970 and 1982, in a series of cases, the Supremes did away with the practice once and for all as a violation of the 14th Amendment’s equal protection clause. Until now of course.
Until Now of Course
More and more states have revived the debtors prison, albeit in a specific form, locking people up for failure to pay court costs and fees. Like so many other things in America, shortfalls in budgets are made up not by raising taxes (or heaven forbid, fiscal prudence) but by new arrays of costs and fees paid by people in the criminal justice system. We are not referring to fine or penalty (ex. speeding ticket=$250) here, but to that thing the judges say on TV– “Guilty, with a fine of $300 and court costs. Next case please.”
The new costs can be dizzying. The Brennan Center at New York University reports:
Some jurisdictions have haphazardly created an interlocking system of fees that can combine to create insurmountable debt burdens. Florida has added more than 20 new fees since 1996. In 2009, the Council of State Governments Justice Center found that a “sprawling number of state and local fees and court costs that state law prescribes as a result of a criminal conviction amounts to a nearly incomprehensible package. In 2009, North Carolina instituted late fees for failure to pay a fine, and added a surcharge for being placed on a payment plan. Jurisdictions in at least nine states charge people extra fees for entering into payment plans, which are purportedly designed to make payments easier.
Leaving aside the not insignificant question of the morality of imprisoning people for debt (an issue that was supposedly resolved years ago), we note that no country incarcerates a higher percentage of its population than the United States. At 716 per 100,000 people, according to the International Centre for Prison Studies, the U.S. tops every other nation in the world (insert “American Exceptionalism” comment). The United States has about five percent of the world’s population, but 25 percent of the world’s prisoners. Prisons are already overcrowded in most places, so on the face, creating new reasons to put people in jail seems a bad idea.
Of course the idea of debtor’s prison also impacts more exactly the people who need more impacting less, the poor. People with money pay the fees and go home. People without money go to jail. In hard-hit Huron County, Ohio in 2012, twenty percent of all arrests were for failure to pay fines. By coincidence, Huron County has a poverty rate above twenty-six percent.
But Shouldn’t People Pay Their Debts?
The governments’ case is as predicted. “When, and only when, an individual is convicted of a crime, there are required fees and court costs,” said Pamela Dembe, of the First Judicial District of Pennsylvania. “If the defendant doesn’t pay, law-abiding taxpayers must pay these costs.”
She’s right of course. When people don’t pay their fees and court costs, it is indeed the taxpayer who ends up paying. But not in the way you might think. Locking up debtors costs money. The U.S. as a whole spends some $39 billion a year on locking people up. There are also incalculable collateral costs, such as families left without a parent. But really, it is about money. The costs to states of locking people up are significant– it costs an average of about $47,000 per year to incarcerate someone in California.
Now sure, Charlie Manson in Super Max and Poor Old Joe in the county lockup do not cost the same, but then again, logic isn’t always the winner: The Brennan Center reports that there are inmates in Pennsylvania who are eligible for release but are kept in prison based on their inability to pay a $60 fee. The daily cost of confinement is nearly $100 per day. In 2009, Mecklenburg County, North Carolina jailed 246 debtors who did not pay for an average of four days. The county collected $33,476 while the jail terms cost $40,000 — a loss for the county.
Stop Making Sense
So we are left with the question of why. Debtors’ prisons in the U.S. were declared unconstitutional, but states have re-implemented them anyway. A person locked up can’t earn money to pay the debt. And most significantly, it ends up costing many jurisdictions more money to punish someone for not paying than they would have “spent” just forgetting the debt. So why do states do this? To be fair, many states do not, and some that do often try and work out some sort of payment plan first. OK, good enough.
Now this may all be for the best. On the streets, nobody is overly concerned about providing food, medical care and shelter to poor people; outside they’re lazy, don’t want to work, nip at the public tit and all. Why, it would be socialism to help them after all. However, inside the prison system they all get food, medical and dental care, all tucked in a warm bed. Our society is apparently more ready to care for a criminal than for a citizen down on his luck.
The reality in America is that far too many people go to jail as punishment for not paying the fees and court costs incurred finding them already guilty of something else. One is left with a tough conclusion: we are more and more a crude, course society on path towards some sort of feudalism, where the rich (if ever brought to court at all) pay their money and walk out, while poor people are punished for no valid reason. We as a society want to set examples, clear the streets of our lowers, punish those who aren’t able to pay the government for giving them their day in court. That’s who we are now. And you better pay your bills.
Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
A new report by the Urban Institute and Encore Capital Group’s Consumer Credit Research Institute shows 77 million Americans– 35 percent of those with files at a major credit bureau– have a debt in collection.
Nevada has the worst record, with 47 percent of consumers with a credit file showing a debt in collections. In twelve other states, including Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, New Mexico, North Carolina, South Carolina, Texas, West Virginia as well as the District of Columbia, more than 40 percent of residents with a credit file have a bill in collections. In some smaller areas, the in-collection number is as high as 61 percent.
The report also shows that 1 out of 20 Americans hold debt that is “past due,” i.e., more than one month delinquent, though not yet in the collection process. Collection usually kicks in after 180 days past due.
Meanwhile, about 22 million Americans make so little money that they do not have credit files.
Poverty is Profitable
But as you can expect, there is always someone profiting from poverty.
For example, in another area of debt, writing checks that exceed the amount in an account (bouncing a check), often in hopes of creating faux credit planning on money to flow in before the check is actually cashed, American banks collect $30 billion a year in overdraft fees.
Collection companies can be seen as a great investment. The companies buy debt cheap and collect high. For example, Bank A itself has no interest in chasing a person for, as an example, a $1000 overdue payment. That’s not the bank’s core business, banking is. So they sell it to a collections company for say 10 percent, or $100. If the company can get back from the consumer anything more than the $100, that’s profit. It can be a lot of profit– one hyper-successful company boasts of a 239% return. A more typical return on investment for a collections company is 20 percent, a nice profit in itself.
In 2010 agencies collected about $40 billion from consumers. Business seems good: there are 4,100 debt collection agencies in the United States, employing nearly 450,000 people, and the industry expects to grow by 23 percent over the next three years. The Association of Credit and Collection Professionals, the industry’s largest trade association, spent more than $660,000 on Congressional lobbying over three years.
So Stop Spending. You Don’t Need that Big Screen
The average American holds $15,000 in debt, about half of that on credit cards (though others put the credit card number at about $4000.) But more significantly, the national averages for mortgage debt are $154,365 and for student loans, $33,607.
A common statement at this point regarding those credit cards is “So stop buying things you can’t afford, especially with high interest rates. Duh.” While there are no doubt people who misuse their credit to buy frivolous things, credit cards are to many in the middle class what pay day loans and pawn shops are to the poor: easy to access money for daily needs when there are no alternatives.
However, according to an analysis of spending from First Data, a major payment processing company, Americans increasingly used credit to purchase food and other everyday necessities. “During the month studied we saw consumers reducing the growth of their discretionary spending at retail merchants and increasingly resorting to credit for necessities,” said a statement. Spending in clothing stores, restaurants and bars declined, while credit spending at general merchandise stores, including value retailers and discount stores, increased.
BONUS: Some 46 million Americans receive benefits from the Supplemental Nutritional Assistance Program, what food stamps are now called. Hmmm… More than 1 out of 3 Americans are indebted, and about 1 out of 6 are dependant on the government to eat. Why, you’d almost think that was a strategy of control or something. But, naw, couldn’t be.
Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!
I am quite pleased to have joined the Advisory Board of ExposeFacts.org.
The group’s message is clear: encourage more government officials to blow the whistle. As said on their website, “ExposeFacts.org represents a new approach for encouraging whistleblowers to disclose information that citizens need to make truly informed decisions in a democracy. From the outset, our message is clear: “Whistleblowers Welcome at ExposeFacts.org.”
I’m sort of amazed I fit in alongside the others working with ExposeFacts: Barbara Ehrenreich, Dan Ellsberg, Tom Drake, Jesselyn Radack, Michael Ratner, Matt Hoh, Coleen Rowley, Ann Wright and Ray McGovern. So there’s yer humble brag for today.
I am also quite pleased that half a block from the State Department in Washington, at a bus stop used by America’s diplomats, ExposeFacts erected its first outdoor advertisement encouraging government employees to blow the whistle (photo above; that’s Matt Hoh there, not me). The ad shows Pentagon Papers whistleblower Daniel Ellsberg alongside the words “Don’t do what I did. Don’t wait until a new war has started, don’t wait until thousands more have died, before you tell the truth with documents that reveal lies or crimes or internal projections of costs and dangers. You might save a war’s worth of lives.”
ExposeFacts will erect more such ads at other prominent locations in Washington and beyond. As an advisory board member, I’m glad to report that outreach to potential whistleblowers is just getting started.
(For those new to the blog, I am a State Department whistleblower, so this all resonates with me personally as well as a concerned American. Learn more in my book We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People (American Empire Project))
Not that America has become a divided, classist society or anything. Oh wait, it has.
New York City approved plans for a new 33-story luxury high-rise at 40 Riverside Drive on the Upper West Side of Manhattan that will include a separate entrance for tenants in “affordable” housing, what some have called the “poor door.” The high-rise has both super-luxe units worth millions, and some affordable housing units. Rich residents come in the front door. Poor residents enter through the side door. The expensive units overlook the Hudson River waterfront. The affordable units are in a “building segment” that faces the street. “Affordable” folks cannot enter the rich side of the building and are prohibited from using any of the building’s amenities. The way the architecture was specifically designed, the two groups will never mingle.
Affordable Housing in a Luxury Building?
Why does such a luxury building have affordable housing units in the first place? Well, so the rich can manipulate New York’s housing laws for their own benefit.
Including some affordable housing units in your new construction buys you two distinct advantages in New York. The first is that the developer is allowed to build a much taller building (and thus having more apartments to sell), skirting zoning laws and claiming valuable “air rights” for the benefit of the poor, of course. The air rights the developer will claim are worth millions in crowded Manhattan. The benefits even apply if you build your luxury tower in one part of Manhattan and your affordable units “off site,” maybe in a nasty part of town.
A developer can also qualify for the program by building condos on “areas of Manhattan of underutilized or unused land,” wherever those may be on some of the most densely populated land in the world.
The biggest advantage of including the affordable units in a luxury building is the massive tax breaks all residents share. New York waives or significantly lowers property taxes, meaning the rich, who need never see or interact with their poor neighbors, make money off their presence. It’s all called the “Inclusionary Housing Program,” or officially, the 421a program.
Here’s an example of how significant these tax breaks can be drawn from another super-luxury building in midtown Manhattan that included some affordable housing units. On an apartment purchased in 2007 for $1.5 million, the owner paid just $35 a month in property taxes. That creeped up to only $374 a month in 2011. When the exemption expires in 2018, the actual monthly tax bill will be an estimated $1,629. Note also any that real estate taxes paid are tax-deductible from one’s income.
Developers Getting Rich off the Poor
Another New York developer, who has built “poor door” buildings, summed things up quite succinctly:
No one ever said that the goal was full integration of these populations. So now you have politicians talking about that, saying how horrible those back doors are. I think it’s unfair to expect very high-income homeowners who paid a fortune to live in their building to have to be in the same boat as low-income renters, who are very fortunate to live in a new building in a great neighborhood.
The developers of the poor door building under discussion have done well with tax breaks. Five of the luxury firm’s other apartment towers cost the city $21.8 million in tax revenue in their first year alone. Overall, as of 2012, property tax abatements in New York City totaled $2.9 billion, about 20 percent of actual property tax collections in the city.
So what’s the problem, some say, with poor folks gettin’ some uptown housing from the swells? History: Separate but equal favors the separate but never the equal part. It did not work as a solution for racial inequality and it won’t work as a solution for economic inequality. Indeed, one wonders if the building caught fire which door the fire department would go through first?
And there you have it, another tidy example of how taxes and laws are rigged to favor the people who already have the most money. Go ahead, work as hard as you like; this game, friends, has already been decided.
Japan’s main broadcast station, NHK (similar to PBS here in the U.S.) dropped by for an interview about my new book, as well as a discussion about an event from my past, my brief encounter with chess great turned psycho Bobby Fischer.
Ghosts of Tom Joad is of interest to Japan for two reasons. First, the main time frame in the book, the late 1970s and early 1980s, represents arguably the high point of the Japanese industrial economy. That was the era of Japan as Number One: Lessons for America, the time when Japanese investors poured money into U.S. real estate, including high-profile purchases such as Rockefeller Center and the Pebble Beach golf course. Of course, Japan’s economic ascendancy was fueled in large part by their industrial exports, especially cars and steel to the U.S. One of the factors of American de-industrialization was the loss of jobs to Japan.
In the way that history loves irony, Japan has interest in Ghosts now also because it is experiencing its own era of de-industrialization. We’re painting in broad strokes here (economists, relax a bit), but much of Japan’s current industrial malaise is due to cheap imports from China and other parts of Asia. Japanese companies are increasingly moving production abroad in search of cheaper labor. Ghosts, to some in Japan, is both a history of Japan’s role in America, and a road map to it’s potential future, with a dash of prophecy.
BONUS: About Bobby Fischer. Bobby you’ll recall was a Cold War hero in America after beating Soviet chess champ Boris Spassky in Iceland in 1972. Fischer went on to lose to his mind, as well as play a for-money chess match in what was then Yugoslavia. The latter violated U.S. trade sanctions of the time, and turned Fischer into a wanted man. He avoided U.S. law enforcement for many years by traveling around the world, until by accident, aided by post-9/11 snooping, Homeland Security found him in Japan. My job at the U.S. embassy there included the revocation of U.S. passports. Homeland Security and State, via me, took away Bobby’s passport in a preview of what would later be done to Edward Snowden.
Why do we need to read history? Why does history matter? Because history helps us to hear the little voices, to discriminate among them, and to silence, perhaps, some of the more troublesome ones. And to act on those little voices, the right ones, when they tell us something important.
For an explanation of this, let’s crack open my favorite novel, The Sand Pebbles, by Richard McKenna. You might have heard of it somewhere along the way; you might also have seen the 1968 movie, with Candice Bergen and Steve McQueen, which was a fairly decent film.
The book is noteworthy because it is one of a scant handful of novels about machinery, written by an author who firsthand knew and understood the world of machinery. I’ve always been a sprockethead first class, so seeing machinery written about this well always appealed to me. The book also has passages of descriptive sociology and cultural anthropology of the first order running through it; particularly about the world of men. It is also the best book ever written about the below decks Navy—the U.S. Naval Academy at Annapolis thought so too and said so on the dustjacket when their press reprinted it some years ago.
McKenna wrote this book after he retired after 20-something years as a torpedo mechanic in the Navy. Sadly, McKenna died way too young from a heart attack, shortly after this book’s publication.
The Sand Pebbles is the story of a Caliban-like machinist’s mate in the China Fleet in the 1920s, back when the US, as well as the other Western powers, ran their warships up and down the major rivers of China. The protagonist, Jake Holman, is posted to the most obscure ship on the China Station, patrolling the far reaches of the Yangtze River. Once aboard, Holman makes it a point, as he always had done, to master every single aspect of the ship’s engineering spaces. The ship is a creaky old relic taken from Spain after the Spanish-American War of 1898, and it has a knock in the engine that has always been there and that has always defeated all prior repair efforts. The knock causes main bearing wear that in turn causes increased coal burning and regular major repairs to clean and re-clearance the ship’s crank bearings. Holman is driven to find out what the cause of the knock is, and to fix it.
Early on in the book Holman is spending time in the ship’s bilges, sloshing around in the dirty bilge water, getting the rustproofing tar in his uniforms and skin and hair, staring at the huge pieces of rotating machinery just inches from his face, trying to figure out the problem.
McKenna talks about all the little voices in the engine room around Holman, all the little noises of the machinery in operation, all its sights and smells, and how it is all a confusing welter of little voices, each trying to be heard. He can hear them, but he can’t hear the right one, on account of the crowded welter of them all, and his ignorance of what voice he should be listening for.
Under the ship’s main crank spinning overhead, Holman sees a drop of oil on the engine soleplate, a drop of oil that expands and contracts regularly. All of a sudden, Holman recognizes that he’s seeing something important–this drop of oil, expanding and contracting, indicates relative movement in the soleplates, where they should be absolutely dead tight. Holman picks up a ballpeen hammer and beats on all the soleplate bolts, and discovers that many of them are loose.
The light bulb goes off in Holman’s head–the soleplate bolts are loose, and the soleplates therefore are in misalignment, causing the rest of the machinery to be in misalignment, all on account of a long-ago grounding that bent the hull slightly. Making the soleplates true and tight to the hull will fix the problem that has dogged the ship’s engine for decades.
McKenna goes on for a spell about the little voices in the passage that tells the above story. Anyone who has worked around machinery knows about those little voices, because they are always out there in machinery, telling you the machine’s story about what’s right and what’s wrong, and what you can do to fix it if it is broken. Anybody who is any good as a wrench, or e-tech, knows about the little voices and how important it is to listen for them. You don’t fix broken things very well without having an ear for the little voices, no matter how skilled you are as a technician. To be any good, you have to have the craft knowledge, the skills, AND the ear for the little voices.
The story of Jake Holman in The Sand Pebbles is really the same story about us and history. History gives us, should we choose to use it, the ability to hear the little voices that tell us the key important facts about some big event going on around us, some big event that is surrounded by a huge welter of competing voices. And if we read history with a keen eye—if we listen to it with discriminating ears–we are far better able to pick out the right little voice out there from all the welter of them that explains things to us, and gives us, combined with our life craft-skills that we acquire as we live and learn, the ability to understand, and perhaps even fix, the problems in our world that bedevil us.
Ace technicians, with a sure eye, ear, and feel for the little voices, are rare, as are ace historians, and ace political leaders. But we all can do better if we are aware of these little voices, and try at least to listen for them. And that is what the study of history is for.
Here’s an example from our today. In our train-wreck of a war in Afghanistan, the Afghan National Army’s (ANA) troops, which the US military is training, sometimes turn sides and shoot the trainers—Green on Blue violence is what the Pentagon calls it. Shoot the trainers, and if they aren’t themselves shot, they then defect to the Taliban.
Such attacks, according to the Pentagon, are unprecedented in human history. That’s rubbish. We only need look back to France’s war in Algeria (1954-62): to cock our heads and listen to the little voices of that war. Listen for that voice, and maybe heed it:
One day in the war there was this French infantry patrol out in the bled (the deep countryside) that got fired on by someone hiding in an orchard just outside this small village. The French patrol returned fire, and a dead fellaga (FLN—Front National Liberation, the Algerian Muslims fighting for Algeria’s independence from France) fell from one of the trees. The members of the patrol went over to his body to investigate and discovered that the person who shot at them was a very old man, who had let fly at them with some antique muzzleloader. The soldiers went through his pockets, and found a Medaille Militaire in his pocket, from the old man’s First World War days in the French Army. Thumbing the medal, and looking down at the corpse of the dead old man, the Lieutenant said, “You know, there’s just something terribly wrong with this war, terribly wrong.”
That fellaga, a combat veteran, knew what he was up against and what he was doing and how suicidal it was for him when he grabbed his muzzleloader and went to try and bag him a Frenchman. The obvious lesson was that the gig was up for France in Algeria, and that France had to leave. Even if that wasn’t quite clear yet to that Lieutenant. He, and most all of France, had not yet the ears to hear, even if the little voices were screaming it.
In that war, there were dozens of instances of Algerian troops killing their French officers and NCOs while they slept and then deserting to the FLN—in at least one instance, a full company of men did.
The French were deaf to what events like these were telling them about Algerie Francais. They refused to hear the little voices. We are equally deaf, and I’d say deliberately so in the Pentagon’s case, with what Green on Blue attacks are telling us about our war in Afghanistan.
When the Pentagon claims these attacks are unprecedented, beyond human ken and understanding, they’re willfully refusing to pay any attention to the discordant voices of history. Anyone who has read anything about the French war in Algeria knows better about the lazy canards about Green on Blue put out by the Pentagon. Anyone who has read anything about counterinsurgency has read about that war, as the French were the foremost practitioners of counterinsurgency in the 20th century, and knows about the Algerian soldiers regularly mutinying and killing their French leaders and deserting.
The gig is up for us in Afghanistan, and the American endeavor in that country is every bit as dead as Algerie Francais. That is clear and beyond refutation.
That lesson should be obvious, if you know your history and understand the little voices studying it lets you hear. Few in this country have read any of that history, any history much period, and so we don’t hear those little voices, and so the problems we face remain beyond our ken to understand enough to fix. But Jake Holman heard those voices in the engine room, and he fixed that engine. But that’s another, absolutely great, story from that book that I’ll leave to you.
This piece by Dan White originally appeared on The Contrary Perspective and is reprinted by permission because it is worth reading.
You can’t get more serious about protecting the people from their government than the Fifth Amendment to the Constitution, specifically in its most critical clause: “No person shall be… deprived of life, liberty, or property, without due process of law.” In 2011, the White House ordered the drone-killing of American citizen Anwar al-Awlaki without trial. It claimed this was a legal act it is prepared to repeat as necessary. Given the Fifth Amendment, how exactly was this justified? Thanks to a much contested, recently released but significantly redacted — about one-third of the text is missing — Justice Department white paper providing the basis for that extrajudicial killing, we finally know: the president in Post-Constitutional America is now officially judge, jury, and executioner.
Due Process in Constitutional America
Looking back on the violations of justice that characterized British rule in pre-Constitutional America, it is easy to see the Founders’ intent in creating the Fifth Amendment. A government’s ability to inflict harm on its people, whether by taking their lives, imprisoning them, or confiscating their property, was to be checked by due process.
Due process is the only requirement of government that is stated twice in the Constitution, signaling its importance. The Fifth Amendment imposed the due process requirement on the federal government, while the Fourteenth Amendment did the same for the states. Both offer a crucial promise to the people that fair procedures will remain available to challenge government actions. The broader concept of due process goes all the way back to the thirteenth-century Magna Carta.
Due process, as refined over the years by the Supreme Court, came to take two forms in Constitutional America. The first was procedural due process: people threatened by government actions that might potentially take away life, liberty, or possessions would have the right to defend themselves from a power that sought, whether for good reasons or bad, to deprive them of something important. American citizens were guaranteed their proverbial “day in court.”
The second type, substantive due process, was codified in 1938 to protect those rights so fundamental that they are implicit in liberty itself, even when not spelled out explicitly in the Constitution. Had the concept been in place at the time, a ready example would have been slavery. Though not specifically prohibited by the Constitution, it was on its face an affront to democracy. No court process could possibly have made slavery fair. The same held, for instance, for the “right” to an education, to have children, and so forth. Substantive due process is often invoked by supporters of same-sex unions, who assert that there is a fundamental right to marry. The meaning is crystal clear: there is an inherent, moral sense of “due process” applicable to government actions against any citizen and it cannot be done away with legally. Any law that attempts to interfere with such rights is inherently unconstitutional.
On September 30, 2011, on the order of the president, a U.S. drone fired a missile in Yemen and killed Anwar al-Awlaki. A Northern Virginia Islamic cleric, in the aftermath of 9/11 he had been invited to lunch at the Pentagon as part of a program to create ties to Muslim moderates. After he moved to Yemen a few years later, the U.S. accused him of working with al-Qaeda as a propagandist who may have played an online role in persuading others to join the cause. (He was allegedly linked to the “Underwear Bomber” and the Fort Hood shooter.) However, no one has ever accused him of pulling a trigger or setting off a bomb, deeds that might, in court, rise to the level of a capital crime. Al-Awlaki held a set of beliefs and talked about them. For that he was executed without trial.
In March 2012, Attorney General Eric Holder made quite a remarkable statement about the al-Awlaki killing. He claimed “that a careful and thorough executive branch review of the facts in a case amounts to ‘due process’ and that the Constitution’s Fifth Amendment protection against depriving a citizen of his or her life without due process of law does not mandate a ‘judicial process.’” In other words, according to the top legal authority in the nation, a White House review was due process enough when it came to an American citizen with al-Qaeda sympathies. In this, though it was unknown at the time, Holder was essentially quoting a secret white paper on that killing produced by the Office of Legal Counsel, located in the department he headed.
In June 2014, after a long court battle to shield the underlying legal basis for the killing, the Obama administration finally released a redacted version of that classified 2010 white paper. In the end, it did so only because without its release key senators were reluctant to confirm the memo’s author, David Barron, who had been nominated by President Obama to serve on the First Circuit Court of Appeals. (Once it was made public, Barron was indeed confirmed.)
The importance of the white paper to understanding Post-Constitutional America cannot be understated. Despite all the unconstitutional actions taken by the government since 9/11 — including striking violations of the Fourth Amendment — this paper is to date the only glimpse we have of the kind of thinking that has gone into Washington’s violations of the Bill of Rights.
Here’s the terrifying part: ostensibly the result of some of the best legal thinking available to the White House on a issue that couldn’t be more basic to the American system, it wouldn’t get a first-year law student a C-. The arguments are almost bizarrely puerile in a document that is a visibly shaky attempt to provide cover for a pre-determined premise. No wonder the administration fought its release for so long. Its officials were, undoubtedly, ashamed of it. Let’s drill down.
Death by Pen
For the killing of an American citizen to be legal, the document claims, you need one essential thing: “an informed, high-level official of the U.S. government [who] has determined that the targeted individual poses an imminent threat of violent attack against the United States.” In addition, capture must be found to be unfeasible and the act of killing must follow the existing laws of war, which means drones are okay but poison gas is a no-no.
The rest of the justification in the white paper flows from that premise in a perverse chain of ankle-bone-connected-to-the-leg-bone logic: the president has the obligation to protect America; al-Qaeda is a threat; Congress authorized war against it; and being in al-Qaeda is more relevant than citizenship (or as the document crudely puts it, “citizenship does not immunize the target”). International borders and the sovereignty of other nations are not issues if the U.S. determines the host nation is “unwilling or unable to suppress the threat posed by the individual targeted.” Basically, it’s all an extension of the idea of self-defense, with more than a dash of convenience shaken in.
When the white paper addresses the Fifth Amendment’s right to due process, and to a lesser extent, the Fourth Amendment’s right against unwarranted seizure (that is, the taking of a life), it dismisses them via the “balancing test.” Not exactly bedrock constitutional material, it works this way: in situations where the government’s interest overshadows an individual’s interest, and the individual’s interest isn’t that big a deal to begin with, and a mistake by the government can later be undone, the full due process clause of the Fifth Amendment need not come into play.
The three-point balancing test cited by the white paper as conclusive enough to justify the extrajudicial killing of an American comes from a 1976 Supreme Court case, Mathews v. Eldridge. There, the court held that an individual denied Social Security benefits had a right to some form of due process, but not necessarily full-blown hearings. In Anwar al-Awlaki’s case, this translates into some truly dubious logic: the government’s interest in protecting Americans overshadows one citizen’s interest in staying alive. Somehow, the desire to stay alive doesn’t count for much because al-Awlaki belonged to al-Qaeda and was in the backlands of Yemen, which meant that he was not conveniently available by capture for a trial date. Admittedly, there’s no undoing death in a drone killing, but so what.
The white paper also draws heavily on the use of the balancing test in the case of Hamdi v. Rumsfeld, in which the U.S. rendered from Afghanistan Yaser Hamdi, a Saudi-American citizen, and sought to detain him indefinitely without trial. After a long legal battle that went to the Supreme Court, the balance test was applied to limit — but not fully do away with — due process. Despite limiting Hamdi’s rights in service to the war on terror, the court was clear: Yaser Hamdi should have a meaningful opportunity to challenge his status. Fearing that giving him his moment in court would expose the brutal reality of his capture, interrogation, and detention, the U.S. government instead released him to Saudi Arabia.
Hamdi’s case dealt with procedural questions, such as whether he should be allowed a trial and if so, under what conditions. As with Mathews v. Eldridge, Hamdi never focused on issues of life and death. Cases can be (re)tried, prisoners released, property returned. Dead is dead — in the case of al-Awlaki that applies to the drone’s target, the balance test, and the Fifth Amendment itself.
What Do Words Mean in Post-Constitutional America?
Having dispensed with significant constitutional issues thanks to some exceedingly dubious logic, the white paper returns to its basic premise: that a kill is legal when that “informed, high-level official” determines that an “imminent threat” to the country is involved. In other words, if the president is convinced, based on whatever proof is provided, he can order an American citizen killed. The white paper doesn’t commit itself on how far down the chain of “high-level officials” kill authority can be delegated. Could the Secretary of the Interior, for instance, issue such an order? He or she is, after all, eighth in the line of succession should the president die in office.
The white paper does, however, spend a fair amount of time explaining how the dictionary definitions of “imminent” and “immediate” do not apply. For kill purposes, it says, the U.S. must have “clear evidence that a specific attack on U.S. persons will take place in the immediate future.” However, the paper goes on to explain that “immediate” can include a situation like al-Awlaki’s in which a person may or may not have been engaged in planning actual attacks that might not be launched for years, or perhaps ever. The paper claims that, since al-Qaeda would prefer to attack the U.S. on a continual basis, any planning or forethought today, however fantastical or future-oriented, constitutes an “imminent” attack that requires sending in the drones.
And if, as perhaps the author of the paper suspected, that isn’t really enough when faced with the bluntness of the Constitution on the issue, the white paper haphazardly draws on the public authority justification. According to this legal concept, public authorities can, in rare circumstances, violate the law — a cop can justifiably kill a bad guy under certain conditions. By extension, the white paper argues, the government of the United States can drone-kill a citizen who is allegedly a member of al-Qaeda. The white paper conveniently doesn’t mention that police shootings are subject to judicial review, and those who commit such unlawful acts can face punishment. The laws behind such a review are unclassified and public, not the rationed fodder of a redacted white paper.
For the final nail in the coffin of some American citizen, the white paper concludes that, Fifth Amendment violation or not, its arguments cannot be challenged in court. In cases of “foreign policy,” courts have traditionally almost always refused to intervene, holding that they are in the realm of the executive branch in consultation, as required, with Congress. Killing an American abroad, the white paper insists, is a foreign policy act and so none of any courts’ business.
Substantive due process legally applies only to legislation, and it is highly unlikely that the Obama administration will seek legislative sanction for its kill process. So it is in one sense not surprising that the white paper makes no mention of it. However, looking at what we can read of that redacted document through the broader lens of substantive due process does tell us a lot about Post-Constitutional America. In Constitutional America, the idea was that a citizen’s right to life and the due process that went with it was essentially an ultimate principle that trumped all others, no matter how bad or evil that person might be. What is important in the white paper is not so much what is there, but what is missing: a fundamental sense of justness.
As medieval kings invoked church sanction to justify evil deeds, so in our modern world lawyers are mobilized to transform government actions that spit in the face of substantive due process — torture, indefinite detention without charge, murder — into something “legal.” Torture morphs into acceptable enhanced interrogation techniques, indefinite detention acquires a quasi-legal stance with the faux-justice of military tribunals, and the convenient murder of a citizen is turned into an act of “self-defense.” However unpalatable Anwar al-Awlaki’s words passed on via the Internet may have been, they would be unlikely to constitute a capital crime in a U.S. court. His killing violated the Fifth Amendment both procedurally and substantively.
Despite its gravity, once the white paper was pried loose from the White House few seemed to care what it said. Even the New York Times, which had fought in court alongside the ACLU to have it released, could only bring itself to editorialize mildly that the document offered “little confidence that the lethal action was taken with real care” and suggest that the rubber-stamp secret Foreign Intelligence Surveillance Court be involved in future kill orders. The ACLU’s comments focused mostly on the need for more documentation on the kills. Meanwhile, a majority of Americans, 52%, approve of drone strikes, likely including the one on Anwar al-Awlaki.
The Kind of Country We Live In
We have fallen from a high place. Dark things have been done. Imagine, pre-9/11, the uproar if we had learned that the first President Bush had directed the NSA to sweep up all America’s communications without warrant, or if Bill Clinton had created a secret framework to kill American citizens without trial. Yet such actions over the course of two administrations are now accepted as almost routine, and entangled in platitudes falsely framing the debate as one between “security” and “freedom.” I suspect that, if they could bring themselves to a moment of genuine honesty, the government officials involved in creating Post-Constitutional America would say that they really never imagined it would be so easy.
In one sense, America the Homeland has become the most significant battleground in the war on terror. No, not in the numbers of those killed or maimed, but in the broad totality of what has been lost to us for no gain. It is worth remembering that, in pre-Constitutional America, a powerful executive — the king — ruled with indifference to the people. With the Constitution, we became a nation, in spirit if not always in practice, based on a common set of values, our Bill of Rights. When you take that away, we here in Post-Constitutional America are just a trailer park of strangers.
Parallel Construction is a technique used by law enforcement to hide the fact that evidence in a criminal case originated with the NSA. In its simplest form, the NSA collects information showing say a Mr. Anderson committed a crime. This happens most commonly in drug cases. The conclusive information is passed to the Drug Enforcement Agency (DEA), who then works backwards from the conclusion to create an independent, “legal” body of evidence to use against Mr. Anderson.
Example: an NSA email intercept shows our Mr. Anderson received a Fedex package with drugs, which he hid under his bed. The DEA takes this info, and gets a search warrant for the Fedex data, which leads them to Mr. Anderson’s apartment. A new legal warrant authorizes a search, and agents “find” the drugs under the bed right where the NSA said they were in the first place.
Some may call this little more than illegal evidence laundering.
Some Constitutional Background
The Fourth Amendment to the Constitution protects Americans against unreasonable and unwarranted searches. The Supreme Court has generally held that searches of, for example, someone’s home, require a warrant. That warrant can be issued only after law enforcement shows they have “probable cause.” That in turn has been defined by the Court to require a high standard of proof, “a fair probability that contraband or evidence of a crime will be found in a particular place.” The NSA pulling information out of the cyberspace ether bypasses and thus violates the Fourth Amendment.
The NSA violations of the Fourth Amendment enable further DEA and other law enforcement violations of the Fifth Amendment, specifically the critical due process clause. The concept of due process dates back to the 13th century Magna Carta.
Specifically, the use of information obtained illegally and whose ultimate source is concealed from the accused violates procedural due process. This is the requirement that before any government actions to take away life, liberty or possessions, the persons affected have the right to defend themselves, to understand the evidence against them, and to question and call witnesses in rebuttal, one’s “day in court.” In short, procedural due process aims to protect individuals from the coercive power of government by ensuring that adjudication processes are fair and open.
DEA is blunt in a document released via FOIA as to how conveniently parallel construction violates these rights:
Our friends in the military and intelligence community never have to prove anything to the general public. They can act upon classified information without ever divulging their sources or methods to anyway [sic] outside their community.
Why Do This to Americans?
With exceptions, courts have held that evidence obtained illegally cannot be used in trial. So why bother to fight for an exception when, using NSA data surreptitiously, evidence can subsequently be obtained cleanly under a warrant, albeit a warrant issued by a court kept ignorant of the source of the underlying information. Another reason to use parallel construction is to hide the NSA’s role. Apart from the broader goal of not disclosing to the American people what their government is doing, blurring the trail back to the NSA gets around any courtroom attempts that require such data to be shared with the defense. And of course the defense can’t ask for something it does not know exists. Lastly, if defendants do not know the ultimate source of the information used to convict them, they cannot know to ask to review potential sources of exculpatory evidence– information that could reveal entrapment, mistakes or biased witnesses.
Needless to say, using information obtained already pre-packaged from the NSA makes DEA’s and other law enforcement agencies’ jobs much easier. They have to do little work on their own to gather the data needed to track down Americans they seek to prosecute. It’s all in the bag.
DEA as the Nexus
DEA seems to be the center of the NSA distribution network, as the program originally started as a way to bust foreign drug dealers before it metastasized into the currrent tool for broadly evading the Bill of Rights.
How widespread domestically is the practice of parallel construction? No one knows. It is known that the unit of the DEA that distributes the NSA information is called the Special Operations Division (SOD.) It partners with two dozen other agencies, including the FBI, CIA, Internal Revenue Service and the Department of Homeland Security. Once laundered of any NSA fingerprints, what those multiple agencies do with the data, and how far they themselves spread it to even more agencies, or to local law enforcement, is unknown.
Why it Matters
There have been complex questions raised about the hiding of NSA-obtained information used to convict Americans, leading to the Solictor General of the United States lying to the Supreme Court about how the Justice Department was not notifying defendants in situations when warrantless surveillance had led in turn to a wiretap order that produced evidence used in court. The Justice Department has taken to notifying some defendents that information obtained via warrantless survellience is being used against them, allowing for a likely Supreme Court challenge. The Justice Department has previously blocked Supreme Court challenges by hiding how information was obtained, thus denying the accused of “standing” in the Court’s eyes.
As part of the response to such government actions, organizations such as the Los Angeles County Bar Association are now offering for-continuing-education-credit tutorials to defense attorneys under titles such as “Criminal Prosecutions and Classified Information.”
A lot of attention Post-Snowden has been paid to what the NSA does– vacuum up emails, listen in on Skype chats and so forth. Too little attention has been devoted to what is done with the information NSA collects. The appetites of law enforcement agencies in Post-Constitutional America are bottomless, and the NSA holds terabytes of data to fill them.
“I’m still not sure exactly what happened,” said gaffe-prone, beleaguered Secretary of State John Kerry, “but I’m told I agreed to sanctions on myself.”
In an exclusive, Kerry explained his mistake.
“So there we were in the Middle East. I travel almost constantly, and at my age, even with a large staff, it can get hard to keep track. I mean, have you ever been to the MidEast? Every place looks like every other place. It’s hot, sandy, and each country seems to have some sort of odd headgear. Look, I’m not the first to get confused by all this.”
“Anyway, so I’m tired. We’re in West-Somewhere-Stan, some forsaken patch of garbage with no oil, where the national export is dust, and I’m shaking hands for a photo op with what seems like the same orphan I shook hands in Baghdad, Kabul, Cairo and Tunis. Does that kid travel on the plane with me? We had had some local food for lunch which did not agree with me, and so I proposed sanctioning humus. Maybe it was sort of a joke, maybe I meant Hamas, maybe it was the Ambien talking. Next thing I know, the State Department spokesperson in Washington is telling reporters I have imposed a sanction on a beloved food product.”
“It really hits the fan then. Half the Middle East turns around and imposes retaliatory sanctions on me. Those people can’t agree on something simple like not killing each others’ kids, and bang! overnight they band together on some silly food thing. I had hoped it was going to blow over after another suicide bombing like always, but then Israel joins in the sanctions against me. Cray cray, amiright?”
Kerry leaned over to an aide, who confirmed for him that he had read his printed talking points correctly.
“Can’t be too careful, right?” joked Kerry, now chewing on the edge of the note card.
“So once Israel agreed to join every Arab nation on the planet in sanctioning me, my hands were tied. I mean, when Israel barks, I’m there with a Scooby treat, often a multi-million dollar treat. So, in a show of solidarity with Israel– who indeed has the right to defend itself against me, which I strongly support– I agreed to join the sanctions regime against myself. I even explained that the United States views the situation with concern to make it all official. Tomorrow I’ll add ‘grave concern.’ That’ll show me I mean business about myself.”
“Next thing I know, everybody in the U.S. is on TV about it. I thought nobody actually watched those Sunday morning news shows, but it turns out that Fox has an intern who takes notes if she’s up early. Pretty soon all of the media has opinions on this, some former Ambassador is writing an Op-Ed and then Barack orders me to come home and not leave my room.”
“So we get on the plane and I’m relaxing with a stiff drink when out the window I see three F-18′s escorting us. My pilot tells me they’re trying to force us to land somewhere, saying I’m violating my own sanctions by flying, plus I’m on the No-Fly list now. Guess what? I end up in Moscow! Nearest airport somehow. You’d think they had a lot of places to stay there with capitalism and all, but I found out all the VIPs are stuck in the same place, which was booked solid for the Ukrainian National Day celebration, and I get stuck on Edward Snowden’s couch for the night. Awkward.”
“At least the guy is pretty quiet, though he leaves his towels on the floor in the shower. And who doesn’t flush? But we got along OK and he even helped me with my laptop. The State Department still runs some software thingie I’m told is called “Windows XP” and Snowden told me it hadn’t been ‘patched’ since ‘like when the first Matrix came out.’ I had left the paper with all my passwords on the plane, but he knew mine somehow. He even said he installed a free ‘keylogger’ for me and some other good stuff. I asked him if I needed a new laptop and he was adamant that I should never, ever stop using the one he had installed all that magic stuff on. What could I say? Hah hah, I can’t even program my VCR I told Ed.”
“That was apparently funny, because my aide had to explain to Ed what a VCR was. Ed said ‘LOL,’ which made me feel good after all those sanctions.”
“How it could the day get worse? One word– Vladimir Putin. Really, what is that guy’s problem? Putin shows up on TV opposing sanctions against me. C’mon, does that dude have to oppose everything we do? Yeah, apparently he does. So I have to throw together a press conference where I call out Putin for opposing sanctions on me, and call on the international community to robustly support even greater sanctions against me. The EU issues a statement saying they resolutely aren’t sure what their position is, and the press sniping starts all over. I’m stuck ‘accidentally’ saying into an open mic I’m personally really angry at myself for not upholding the sanctions. What a mess.”
“Next thing I know, my own State Department starts Tweeting about the sanctions, hashtagging my sorry self with junk like #SaveALifeSanctionKerry. Worse yet, they’re sending me emails asking me to approve the Tweets about myself, something about policies come and go but bureaucracy remains. Man, me and Snowden had a laugh about that one. He knew my password for Netflix and so we just chilled after that.”
“So here I am stuck in Russia with all these sanctions on me. I hear Obama is threatening to ‘ratchet down’ the sanctions on me if China doesn’t lower tariffs. I’d like to fly there and sort that out, but with the sanctions I’m really over a barrell. I can’t even use my card at the ATM. At this point I’m not sure what to do next. I’m thinking of calling up Jon Stewart and seeing if he’ll weigh in for me. He’s about the only guy left Barack really listens to. Wish me luck.”
We were warned we might become this way.
In the 1928 case of Olmsted v. The United States, at issue before the Supreme Court was whether the use of wiretapped private telephone conversations, obtained by federal agents without judicial approval and subsequently used as evidence, constituted a violation of the defendant’s rights under the Fourth and Fifth Amendments. In a 5-4 decision, the Court held that rights were not violated and the evidence obtained without a warrant could be used.
In his dissent, Justice Louis Brandeis wrote:
Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law…
Like Father, Like Son
In an era where Big Government acts in open contempt of the rule of law, killing its own citizens without due process, torturing its people, recklessly spying on them and taking away their right to free speech, it is little surprise that Small Government seeks to do the same. Petty is what petty does. Much of this all manifests itself in the militarization of our police coupled with their criminalization of everything.
Militarization of the Police
There are too many examples of violence for even a short list: a defendant killed by police at his own trial; a lengthy and detailed report that found the Albuquerque, New Mexico Police Department engages in the practice of excessive force, including deadly force, in violation of the Fourth Amendment; a false-postive drug test leading to a SWAT assault on an innocent family; a baby burned into a coma by a flash-bang grenade thrown by another SWAT team in another unnecessasry home raid; a woman sexually assaulted by a cop in a courthouse who then arrested her for reporting it; LA sheriffs beating a chained inmate; cops choking a non-resisting drunk into unconsciousness; police blindsiding a woman with a nightstick at basketball celebration; police killing a 93 year old woman in her own home; cops tasering and beating a deaf man trying to communicate with them in sign lanaguage and on and on.
Criminalization of Everything
Concurrent with the increasing acts of unwarranted violence by police against the citizens they are sworn to protect and serve are attempts to criminalize as much behavior as possible, whether it represents any threat to society at large (long sentences for minor marijuana possession) or is simply an excuse to bust heads (not dispersing immediately equating to resisting arrest.)
But here’s how it has morphed into even more, an assault on First Amendment rights. And even though the cops lost in some of the following cases, the pattern is too clear to ignore, too dark to high-five over a win.
Cops in multiple states– cases have been tried in Maryland, Florida, Tennessee, Missouri and Oregon– have arrested drivers for flashing their headlights. It is not uncommon for drivers to flash their lights at incoming traffic to warn of a police speed trap ahead. The result of the flashing is that incoming drivers slow down, precisely the real point of the law. Cops, however, claim the flashing lights are an interference with law enforcement.
In the most recent case, in Oregon, a judge did find that motorists flashing their headlights amounts to speech protected by the First Amendment, similar to when people honk their horns to welcome home the troops. “The citation was clearly given to punish the Defendant for that expression,” the judge wrote. “The government certainly can and should enforce the traffic laws for the safety of all drivers on the road. However, the government cannot enforce the traffic laws, or any other laws, to punish drivers for their expressive conduct.”
Videotaping the Police
Reaching back to the 1992 Rodney King beating in Los Angeles, police have been caught on camera in a seemingly-endless-string of beatings. The typical pattern is that before the video is shown, the beaten person is accused of resisting arrest and the cops claim the violence they visited on him was unfortunate, but necessary and appropriate. Then the video comes to light and the brutality is revealed.
So it is little surprise that the cops have tried to criminalize videotaping the cops. Evil only works well in the dark after all. A recent case in New Hampshire, however, may help forestall the dark a bit.
A woman was following a friend’s car to his house when an officer pulled him over. From about 30 feet away, after getting out of her car, the woman announced she was going to audio-record the police stop of her friend. The cops arrested her and charged her with wiretapping, along with disobeying a police officer, obstructing a government official, and unlawful interception of oral communications. Though the woman was never prosecuted, she sued, alleging that her arrest constituted retaliatory prosecution in breach of her constitutional rights.
An appeals court sent the case back to trial. The cops settled for $57,000 (using taxpayer money to pay off the suit; small change really. In 2012 Boston paid a citizen $170,000 in damages and legal fees to settle a civil rights lawsuit stemming from his felony arrest for videotaping police roughing up a suspect) before the case when to full trial, allowing for a minor victory albeit at the cost of not having a court declare war on the abuse of a citizen’s First Amendment rights.
Another woman was not so successful. She was charged with using a mobile phone “hidden” in her purse to audio-record her own arrest. The cops charged her with wiretapping under Massachusetts law, which says people may record police officers only in public places, and only if the officers are aware that a recording is taking place.
The ACLU asserts “since 9/11, a disturbing pattern of innocent individuals being harassed by the police for taking still and video photographs in public places has emerged across the country.” ACLU has a long list of specific cases.
The ACLU also notes “Another disturbing trend is police officers and prosecutors using wiretapping statutes in certain states (such as Florida, Illinois, Maryland, Massachusetts, New Jersey and Pennsylvania) to arrest and prosecute those who attempt to record police activities using videocameras that include audio.”
Again in Massachusetts, a woman who videotaped a cop beating a motorist with a flashlight posted the video online. Afterwards, one of the cops caught at the scene filed criminal wiretapping charges against her, though she was never prosecuted.
There are many, many more examples of the criminalization of the First Amendment. Even when charges don’t stick, the act of being arrested, possibly mistreated, often serves the cops’ purpose.
Fish rot from the head they say, and as Justice Louis Brandeis tried to warn us some 80 years ago. When the federal government claims itself exempt from the Constitution, don’t be surprised when your local cops say the same.
Speaking via video link (he uses Skype!) from Russia to the HopeX hackers’ conference in New York City July 19, Edward Snowden issued a call to arms to those present. Engineers, he said, “need to think now in adversarial terms to defeat government technical capabilities.” While the government now uses technology to shield themselves from accountability, software and hardware must “become a way to express our freedoms while protecting our freedoms.”
Technology and Government
Snowden went on to make a number of important points regarding the new relationship technology has created between the government and the people.
– Technology now makes it possible to publish information without the government’s ability to stop it. While the photocopier was the “killer app” of Daniel Ellsberg’s day, Wikileaks and Snowden’s own revelations show the empowerment potential of technology. Snowden reminded the audience that when the government fears its people (as opposed to the inverse), that is democracy.
– The value of masses of documents– evidence– cannot be understated because it cannot be ignored. Only mass evidence of NSA illegal spying “brought the president to the podium, and the people back to the table of government.”
– Snowden noted his and other whistleblowers’ attempts to “go through channels” with their concerns, but cautioned “The American Revolution was not fought for the right to channels.”
– Secret courts interpreting secret laws to issue secret findings carried out by secret agencies in secret defines much of our world today. The government through this “exploit chain” has shut us out from the process and policies that impact our lives.
– Via his NSA revelations, we now know a new truth about our world, that who we love, who we spend time with, who we hate is now known by people who are not held accountable, not even by the full Congress.
Encoding Our Rights
Snowden’s most important points were part of a call to action for technologists. He emphasized encryption, while very important, only protects content (what is written in your emails) and not metadata (information about to whom you send emails, for example.) This means, encryption or not, everything you communicate is being measured and analyzed; the government is programmatically examining our lives, in bulk, creating layers of suspicion by association. And in that sense, metadata is not about you, or me, it is about us, the collective us, all Americans and all others around the world.
In this sense, what the NSA is doing is perhaps greater, perhaps even worse, than “merely” listening in on what you say or reading what you write. They are, in a broader sense, creating a map of how every global citizen fits in with every other citizen. Pair that with whatever content is collected, and the NSA comes close to knowing everything.
That is why, Snowden told the crowd, the next job for us all, and Snowden’s own future work, will be to encode our rights into our technology, to take away by our own hands and intellect what the government has learned to use against us.
The key is to divorce the connection from the connector, i.e., create unattributable communications that destroy the government’s ability to collect and analyze metadata and run traffic analysis. Snowden gave the example of Tor, a secure enough networking tool. The big weakness of Tor is that the NSA can easily see that a computer has entered the Tor network, allowing them to otherwise easily target that computer, and, if possible, target the person associated with that computer. Same with someone who makes a call using the Verizon network. Divorcing the connection from the connector means cutting those links of association, forcing NSA to have to find some other means of targeting an individual or uncovering broader patterns.
A significant issue that holds many potential whistleblowers back is the risk of getting caught. Getting caught in this era means potentially life in prison, loss of family, loss of savings, loss of job and/or loss of status, position and identity. If technologists can lower the risk of getting caught, then that would likely make it more likely that more people would consider acts of patriotism and conscience. It is important that thousands (maybe hundred of thousands?) of people could have done what Snowden did, but only one man did it.
Snowden then made one of his most chilling, and significant points, unexpectedly.
He informed that crowd that there were almost certainly NSA operatives among them as he spoke. He explained that NSA has a budget just for sending people to hacker conferences, to see what they can learn, which people to look at further, and report back. Addressing those NSA people specifically, as well as the mass audience, Snowden challenged them directly to think about the world they wanted to live in, and then help build it.
Snowden just upped his game. In addition to his own work and revelations, he is now directing how others should proceed. He is combining technology and patriotism, whistleblowing and philosophy.
The NSA may be right; Edward Snowden may be the most dangerous man (virtually) in America.
Note: The presentation was built around a three-way discussion among Daniel Ellsberg, Trevor Timm and Ed Snowden. I’ve only reported on Snowden’s remarks, though seeing him interact with Ellsberg was like what I imagined being in the room would have been like when Bruce Springsteen met Pete Seeger.
Here’s the full audio of the presentation if you’d like to listen.
I recently spoke with KGNU‘s Claudia Cragg about my personal work experience at a store I call “Bullseye,” in the minimum wage Big Box economy and how this led to Ghosts of Tom Joad: A Story of the #99Percent.
Ghosts looks up close at the drastic effects of social and economic changes in America between WWII and the decline of the blue collar middle class in the 1980’s right up to today.
Have a listen to the full interview.
In the world of spying in general, and especially when you’re spying on allied nations, Rule No. 1 is “Don’t Get Caught.” Rule No. 2 is “Make Sure the Juice is Worth the Squeeze.” The U.S. broke both rules, several times, in Germany. For what?
Rule No. 1: Don’t Get Caught
Getting caught spying is never a good idea. Want to end a relationship? Have your girlfriend discover you looking through her cell phone. The same applies to nations. Though the adage “everyone spies on everyone” and its antecedent “spying is the world’s second oldest profession” are true, getting caught trumps both, especially when spying on a friendly nation.
In Germany, the U.S. was caught. Several times.
The Snowden revelations showed that not only did the United States (via the NSA) spy on Germany as a whole, vacuuming up all sorts of communications, but that it drilled down to the level of spying on Chancellor Angela Merkel’s personal cell phone. Recently, however, two more examples emerged.
The first involved a mid-level employee of the German intelligence service, arrested on July 2. The employee, identified only as Markus R., became of interest in May after he sent an email to the Russian consulate in Munich offering classified information. He even attached a sample intelligence document to his email, information suggesting another German official was a Russian spy.
German counterintelligence officials set up a trap, replying to Markus R. using a fake Russian email address, suggesting a meeting. Markus R. didn’t bite. Seeking help, the Germans forwarded Markus’ Gmail address to the Americans, asking if they recognized it. No reply from the Americans. Instead, Markus R.’s email address suddenly shut down. The Germans arrested Markus, who rolled over and provided proof he was spying for the U.S.
That other German official, maybe a Russian spy Markus dangled in front of the Russians? That took a curious twist. It turns out that German intelligence had had the guy on its radar since 2010, and had learned the man had taken trips paid for by an “American friend.” Soon after the Germans raided the guy’s home and, perhaps by coincidence, then immediately expelled the head of the CIA resident in Germany.
How Not to Get Caught
Sometimes things just go belly-up and there is not much you could have done. But often times there are things you could have done.
To begin, one must vet one’s agents, the foreign citizen who is paid to spy for you on his own country. Is he a flake? A fake? A glory seeker, an adventurer, a Walter Mitty-type? Has he shopped his information around to other spies? What is his motivation? If you pay him a lot of money, will he do stupid things like suddenly start buying luxury goods on a clerk’s salary? What are his weaknesses– if he talks too much to you when drunk, maybe he’ll do the same with others. If he can be played with women, men, drugs, gambling or whatever, well, the other side(s) knows how to do that too. The answers to these questions can help predict whether or not he can be trusted. After all, by your choosing to work with him, he now knows some of your secrets too.
Next up is assessing his ability to spy for you without doing things that will compromise the action. Does he understand how to communicate securely, how to be discreet, how to acquire documents without alerting his employer? Is he teachable, can he follow instructions on how to do all those things? If you give him secure ways to communicate, does he use them all the time, or does he panic and call over open channels? (Markus R., after his initial email(s), was apparently given a secure communications device by his American handler.)
What about the host nation? How good are they at counter-intelligence? How good are you at counter-counter-intelligence, knowing what they know about your activities? This dictates how much caution and discretion needs to be involved.
Markus R. apparently offered himself directly to the U.S. via an open email, and then went on to try the same with the Russians. In the latter instance, he communicated openly over Gmail, even attaching a sensitive document. Given the furor over the Snowden revelations in Germany, and his own position inside the German intelligence operation, it is impossible that he was unaware of the boneheadedness of such actions. This should have been a full-blown emergency sign inside the CIA.
Finally, don’t make it easy for the other side to catch you. Slamming shut the Gmail account right after the Germans asked the U.S. about it pretty much sealed the deal.
All of this brings us to Rule No. 2.
Rule No. 2: Is the Juice Worth the Squeeze?
In other words, for any given information (the juice), what effort is required to obtain it (the squeeze)? Similarly, what is the potential fallout if the squeeze is exposed? In the German caper, the violation of Rule No. 2 seems near-complete.
Following the Snowden revelations, it was dead solid perfect obvious that anything to do with additional spying inside Germany, never mind spying on Germany, would be sensitive enough to immediately reach the highest levels of both governments. That should have set off a careful evaluation of activity, with a risk analysis of each and every operation ongoing or planned. The question that should have been being asked was “If this gets out, given the likely bilateral fallout, can we justify that by what we learned?” In other words, was the info acquired so valuable to the U.S. that it was worth the firestorm that followed?
It does not appear that risk analysis was done, or if it was done, that anyone paid attention to it. Though full details are of course (for now…) unknown, it appears that Markus R. did not turn over documents critical to U.S. national security. Some reports claim what he revealed mostly dealt with what the German’s were doing about the earlier NSA revelations. According to one news source, Markus “admitted passing to an American contact details concerning a German parliamentary committee’s investigation of alleged U.S. eavesdropping disclosed by Edward Snowden.”
Though some agents are bought off very cheaply by the CIA, that seems less applicable in a first world nation such as Germany. You often do get what you pay for; the U.S. allegedly only paid Markus R. about $34,000.
Further risk was assumed by possibly involving a third country, also an ally. Reports suggest Markus R. traveled to Austria to meet his CIA handler, and that the whole operation was run primarily out of Austria. That can push the disruption of relations across a second border with little if any potential benefit to the United States.
There have been short-term negatives. The German Interior Ministry said it would cancel a contract with Verizon Communications. “The links revealed between foreign intelligence agencies and firms,” the ministry said in a statement, “show that the German government needs a high level of security for its essential networks.” A lot of rhetoric will pass. There is no doubt that American intelligence officers in Germany will come under greater scrutiny, likely reducing their effectiveness. Some points of intel cooperation between the U.S. and Germany may suffer.
But U.S.-German relations are long, deep and complex. The Markus R. incident, like the NSA revelations, will be hard to track in the broader picture. It will be hard to pinpoint specific changes in the relationship, as they will be subtle if not classified, or because they may not even occur.
Perhaps though the bigger lesson here is more domestic than foreign. Obama claims he was not informed of the Markus R. case, as he claimed he was not informed of NSA spying on Merkel’s cell phone. Was CIA action in the Markus case (and the NSA’s earlier actions) sensitive to their implications? Did the CIA act in concert with broader U.S. government goals and aims, or did they act with a lack of concern? The answers to those questions may tell us more about how things are working inside our own government than anything to do with foreign relations.
BONUS: There is a Rule No. 3, but if I told you that I’d have to kill you…
Contract Fraud with Your Money
Tim Ferner blew the whistle on a contract-steering scam involving a middleman in Florida and an engineering company hired to develop anti-terrorism techniques.
Tim Ferner suspected the scam in 2007 when his superiors at the Coalition and Irregular Warfare Center downplayed his concerns about how contracts were being doled out. Science Applications International Corporation (SAIC), received those contracts.
Ferner tried to go through military channels to stop the fraud he witnessed, Instead of helping, his superiors made his life difficult, even threatening to deploy him to Afghanistan while he was undergoing cancer treatment. Ultimately, he was fired from his job as Chief of Staff for the Coalition and Irregular Warfare Center at Nellis Air Force Base and relegated to a menial position. With channels closed off and retaliation underway, the case went to court.
SAIC and the government reached a settlement. The Department of Justice went to pains to note the settlement contained “allegations only and there has been no determination of liability.” However, SAIC agreed to pay the government $5.75 million to resolve allegations it circumvented the bidding process to obtain lucrative contracts.
Ferner’s lawyers claimed the alleged scam was facilitated by a civilian middleman who “claimed to be a high-ranking government official who had authority to bypass the bidding process, none of which was true.” Ferner himself “was alarmed that his military supervisors condoned and wanted to cover up the violation.”
And hey, small world: SAIC around the same time also paid the government $11.75 million to settle allegations it charged inflated prices for another, unrealted, contract.
EXCLUSIVE: Ferner Recounts His Whistleblowing
Ferner received a nice financial award under the False Claims Act, and left the U.S. for New Zealand. In an exclusive, he speaks out on his own experience as a whistleblower, with some hard words for America about how its government works:
Exactly one year after my whistle-blowing case became public, I’m looking back and wondering: “What the hell was I thinking?” Like many whistleblowers, my allegations were validated; I was vindicated but nobody was ever held accountable. So actually, what was accomplished?
My case pales in comparison to others working in the government who have come across really bad people doing horrendous things. All across America there are thousands of regular people, brave men and women who happen upon malfeasance. These people had the courage and conviction to do the right thing and report it. Why? Like myself, these people did the right thing because honor and integrity are the core essence of who they are. Unfortunately, honesty, integrity and dedication to professionalism are dying traits across America and individuals who demonstrate these qualities are punished, especially those who work within the government sector.
I’ve always felt that as a member of the United States military it was an honor and privilege to serve a great nation. And that, in addition to my legal obligations, I had a moral obligation to ensure that the monies the American people paid were spent in the most effective and efficient manner. I always treated government monies the same as my own personal money and spent it judiciously. Unfortunately, other military members and government employees don’t hold the same view. Consequently, millions and millions of taxpayers’ dollars are wasted needlessly. Like thousands of other whistle-blowers working for the government, I found out what happens when you have the audacity to call them out on fraud, waste and abuse and try and hold people accountable.
The terrorist attacks that occurred on 9/11 changed our country in many ways. People don’t recognize that it’s changed the way the government provides safety and security to the people. The government embraced contractors to provide security in keeping America safe. We seem to be safer but at what cost? This decision has transformed the governmental contracting process into something akin to a gigantic hog’s trough. The government pours an endless supply of money into the trough and the contractors continue to “belly up” and feed totally unchecked. The government provides little oversight over monies spent and a fearful public doesn’t care so long as they think they are safe.
Consequently, unscrupulous individuals continue to line their pockets at our expense. Even when they are caught, the government does nothing and seemingly doesn’t care. Contractors pay huge fines under the auspices of “avoiding the costs of protracted litigation” while the individuals involved plead to lesser charges in exchange for working with prosecutors. The fraud, waste and abuse is so prevalent that this ridiculous cycle is the only way to keep it in check. The “Justice System” is devoid of any justice or accountability; it’s solely a process designed to make it look like something is being done.
I uncovered in excess of $42 million in fraud. Despite this, nobody has been prosecuted or held accountable. Like so many other contractors, a multimillion dollar settlement was paid to the government to “costly, protracted litigation.” The individual operating as the “middleman” was ultimately found to be liable for $42 million. Despite this, he negotiated this down and paid a fine of $105,000 in exchange for providing assistance to the government in “ongoing investigations.” Amazingly, all these people still have security clearances and still work as a contractors for the government. What message does this send about the government’s commitment to honesty and integrity in the contracting community?
The Air Force officers responsible for overseeing the programs involved in the fraud all walked away with no repercussions to their careers. The taxpayers paid a lot of money to some very senior officers to not be held accountable. A sad commentary that in today’s Air Force, the moral fibre of the command environment is so fetid that it views fraud as a normal cost of doing business. Nice to know the senior leaders who are deciding the fate of your sons and daughters get that privilege given their lack of morality. How can we expect them to make an appropriate decision on the sanctity of life when they lack the morality to decide simple things like what’s right and wrong concerning contract fraud? Aren’t the military supposed to be above the pettiness of politics? Or has the military just become another breeding ground for the dysfunctional politicians that now stymie our political system? Given the fiscal state of the country people should be outraged!
Like so many other whistle-blowers; I know in my heart I did the right thing in reporting the fraud. And again, like so many other whistle-blowers I was the only one who paid a price throughout the ordeal. Ostracised, targeted and ultimately punished because I had the audacity to believe we the people deserve better. When are we going to start holding people accountable? Like other whistleblowers; I’ve done my part. Everybody needs to do their part. It’s hard for others to look at maleficence in government and report it when they see how whistleblowers are treated but more needs to be done.
I hope you never find yourself in the unenviable position of being a whistleblower; and I mean that. Yeah, I got a nice settlement for my troubles as a whistleblower but that’s not why I did it. I did it because it was the right thing to do. Knowing what I know now, I’m still looking back thinking; “What the hell was I thinking?”
Here’s a bit of history from another America: The Bill of Rights was designed to protect the people from their government. If the First Amendment’s right to speak out publicly was the people’s wall of security, then the Fourth Amendment’s right to privacy was its buttress. It was once thought that the government should neither be able to stop citizens from speaking nor peer into their lives. Think of that as the essence of the Constitutional era that ended when those towers came down on September 11, 2001. Consider how privacy worked before 9/11 and how it works now, in Post-Constitutional America.
The Fourth Amendment
A response to British King George’s excessive invasions of privacy in colonial America, the Fourth Amendment pulls no punches:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
In Post-Constitutional America, the government might as well have taken scissors to the original copy of the Constitution stored in the National Archives, then crumpled up the Fourth Amendment and tossed it in the garbage can. The NSA revelations of Edward Snowden are, in that sense, not just a shock to the conscience but to the Fourth Amendment itself: Our government spies on us. All of us. Without suspicion. Without warrants. Without probable cause. Without restraint. This would qualify as “unreasonable” in our old constitutional world, but no more.
Here, then, are four ways that, in the name of American “security” and according to our government, the Fourth Amendment no longer really applies to our lives.
The Constitutional Borderline
Begin at America’s borders. Most people believe they are “in” the United States as soon as they step off an international flight and are thus fully covered by the Bill of Rights. The truth has, in the twenty-first century, become infinitely more complicated as long-standing practices are manipulated to serve the expanding desires of the national security state. The mining of words and concepts for new, darker meanings is a hallmark of how things work in Post-Constitutional America.
Over the years, recognizing that certain situations could render Fourth Amendment requirements impractical or against the public interest, the Supreme Court crafted various exceptions to them. One was the “border search.” The idea was that the United States should be able to protect itself by stopping and examining people entering the country. As a result, routine border searches without warrants are constitutionally “reasonable” simply by virtue of where they take place. It’s a concept with a long history, enumerated by the First Congress in 1789.
Here’s the twist in the present era: The definition of “border” has been changed. Upon arriving in the United States from abroad, you are not legally present in the country until allowed to enter by Department of Homeland Security (DHS) officials. You know, the guys who look into your luggage and stamp your passport. Until that moment, you exist in a legal void where the protections of the Bill of Rights and the laws of the United States do not apply. This concept also predates Post-Constitutional America and the DHS. Remember the sorting process at Ellis Island in the late nineteenth and early twentieth centuries? No lawyers allowed there.
Those modest exceptions were all part of constitutional America. Today, once reasonable searches at the border have morphed into a vast “Constitution-free zone.” The “border” is now a strip of land circling the country and extending 100 miles inland that includes two-thirds of the U.S. population. In this vast region, Customs and Border Protection (CBP) can set up checkpoints and conduct warrantless searches. At airports, American citizens are now similarly subjected to search and seizure as filmmaker Laura Poitras — whose work focuses on national security issues in general and Edward Snowden in the particular — knows firsthand. Since 2006, almost every time Poitras has returned to the U.S., her plane has been met by government agents and her laptop and phone examined.
There are multiple similar high-profile cases (including those of a Wikileaks researcher and a Chelsea Manning supporter), but ordinary citizens are hardly exempt. Despite standing in an American airport, a pane of glass away from loved ones, you are not in the U.S. and have no Fourth Amendment rights. How many such airport searches are conducted in the aggregate is unknown. The best information we have comes from a FOIA request by the ACLU. It revealed that, in the 18-month period beginning in October 2008, more than 6,600 people, about half of them U.S. citizens, were subjected to electronic device searches at the border.
Still, reminding us that it’s possible to have a sense of humor on the road to hell, the CBP offers this undoubtedly inadvertent pun at its website: “It is not the intent of CBP to subject travelers to unwarranted scrutiny.” (emphasis added)
Making It All Constitutional In-House
Here’s another example of how definitions have been readjusted to serve the national security state’s overriding needs: The Department of Justice (DOJ) created a Post-Constitutional interpretation of the Fourth Amendment that allows it to access millions of records of Americans using only subpoenas, not search warrants.
Some background: A warrant is court permission to search and seize something. As the Fourth Amendment makes clear, it must be specific: enter Thomas Anderson’s home and look for hacked software. Warrants can only be issued on “probable cause.” The Supreme Court defined probable cause as requiring a high standard of proof, or to quote its words, “a fair probability that contraband or evidence of a crime will be found in a particular place.”
A subpoena on the other hand is nothing more than a government order issued to a citizen or organization to do something, most typically to produce a document. Standards for issuing a subpoena are flexible, as most executive agencies can issue them on their own without interaction with a court. In such cases, there is no independent oversight.
The Department of Justice now claims that, under the Fourth Amendment, it can simply subpoena an Internet company like Facebook and demand that they look for and turn over all the records they have on our Mr. Anderson. Their explanation: The DOJ isn’t doing the searching, just demanding that another organization do it. As far as its lawyers are concerned, in such a situation, no warrant is needed. In addition, the Department of Justice believes it has the authority to subpoena multiple records, maybe even all the records Facebook has. Records on you? Some group of people including you? Everyone? We don’t know, as sources of data like Facebook and Google are prohibited from disclosing much about the information they hand over to the NSA or other government outfits about you.
It’s easy enough to miss the gravity of this in-house interpretation when it comes to the Fourth Amendment. If the FBI today came to your home and demanded access to your emails, it would require a warrant obtained from a court after a show of probable cause to get them. If, however, the Department of Justice can simply issue a subpoena to Google to the same end, they can potentially vacuum up every Gmail message you’ve ever sent without a warrant and it won’t constitute a “search.” The DOJ has continued this practice even though in 2010 a federal appeals court ruled that bulk warrantless access to email violates the Fourth Amendment. An FBI field manual released under the Freedom of Information Act similarly makes it clear that the Bureau’s agents don’t need warrants to access email in bulk when it’s pulled directly from Google, Yahoo, Microsoft, or other service providers.
How far can the use of a subpoena go in bypassing the Fourth Amendment? Recently, the inspector general of the Department of Veterans Affairs (VA) issued a subpoena — no court involved — demanding that the Project On Government Oversight (POGO) turn over all information it has collected relating to abuses and mismanagement at VA medical facilities. POGO is a private, non-profit group, dedicated to assisting whistleblowers. The VA subpoena demands access to records sent via an encrypted website to POGO under a promise of anonymity, many from current or former VA employees.
Rather than seek to break the encryption surreptitiously and illegally to expose the whistleblowers, the government has taken a simpler, if unconstitutional route, by simply demanding the names and reports. POGO has refused to comply, setting up a legal confrontation. In the meantime, consider it just another sign of the direction the government is heading when it comes to the Fourth Amendment.
Technology and the Fourth Amendment
Some observers suggest that there is little new here. For example, the compiling of information on innocent Americans by J. Edgar Hoover’s low-tech FBI back in the 1960s has been well documented. Paper reports on activities, recordings of conversations, and photos of meetings and trysts, all secretly obtained, exposed the lives of civil rights leaders, popular musicians, and antiwar protesters. From 1956 to at least 1971, the government also wiretapped the calls and conversations of Americans under the Bureau’s counterintelligence program (COINTELPRO).
But those who look to such history of government illegality for a strange kind of nothing-new-under-the-sun reassurance have not grasped the impact of fast-developing technology. In scale, scope, and sheer efficiency, the systems now being employed inside the U.S. by the NSA and other intelligence agencies are something quite new and historically significant. Size matters.
To avoid such encroaching digitization would essentially mean withdrawing from society, not exactly an option for most Americans. More of life is now online — from banking to travel to social media. Where the NSA was once limited to traditional notions of communication — the written and spoken word — new possibilities for following you and intruding on your life in myriad ways are being created. The agency can, for instance, now collect images, photos, and video, and subject them to facial recognition technology that can increasingly put a name to a face. Such technology, employed today at casinos as well as in the secret world of the national security state, can pick out a face in a crowd and identify it, taking into account age, changes in facial hair, new glasses, hats, and the like.
An offshoot of facial recognition is the broader category of biometrics, the use of physical and biological traits unique to a person for identification. These can be anything from ordinary fingerprinting to cutting-edge DNA records and iris scans. (Biometrics is already big business and even has its own trade association in Washington.) One of the world’s largest known collections of biometric data is held by the Department of State. As of December 2009, its Consular Consolidated Database (CCD) contained more than 75 million photographs of Americans and foreigners and is growing at a rate of approximately 35,000 records per day. CCD also collects and stores indefinitely the fingerprints of all foreigners issued visas.
With ever more data available, the NSA and other agencies are creating ever more robust ways to store it. Such storage is cheap and bounteous, with few limits other than the availability of electricity and water to cool the electronics. Emerging tech will surely bypass many of the existing constraints to make holding more data longer even easier and cheaper. The old days of file cabinets, or later, clunky disk drives, are over in an era of mega-data storage warehouses.
The way data is aggregated is also changing fast. Where data was once kept in cabinets in separate offices, later in bureaucratically isolated, agency-by-agency digital islands, post-9/11 sharing mandates coupled with new technology have led to fusion databases. In these, information from such disparate sources as license plate readers, wiretaps, and records of library book choices can be aggregated and easily shared. Basically everything about a person, gathered worldwide by various agencies and means, can now be put into a single “file.”
Once you have the whole haystack, there’s still the problem of how to locate the needle. For this, emerging technologies grow ever more capable of analyzing Big Data. Some simple ones are even available to the public, like IBM’s Non-Obvious Relationship Awareness software (NORA). It can, for example, scan multiple databases, geolocation information, and social media friend lists and recognize relationships that may not be obvious at first glance. The software is fast and requires no human intervention. It runs 24/7/365/Forever.
Tools like NORA and its more sophisticated classified cousins are NSA’s solution to one of the last hurdles to knowing nearly everything: The need for human analysts to “connect the dots.” Skilled analysts take time to train, are prone to human error, and — given the quickly expanding supply of data — will always be in demand. Automated analysis also offers the NSA other advantages. Software doesn’t have a conscience and it can’t blow the whistle.
What does all this mean in terms of the Fourth Amendment? It’s simple: The technological and human factors that constrained the gathering and processing of data in the past are fast disappearing. Prior to these “advances,” even the most ill-intentioned government urges to intrude on and do away with the privacy of citizens were held in check by the possible. The techno-gloves are now off and the possible is increasingly whatever an official or bureaucrat wants to do. That means violations of the Fourth Amendment are held in check only by the goodwill of the government, which might have qualified as the ultimate nightmare of those who wrote the Constitution.
On this front, however, there are signs of hope that the Supreme Court may return to its check-and-balance role of the Constitutional era. One sign, directly addressing the Fourth Amendment, is this week’s unanimous decision that the police cannot search the contents of a cell phone without a warrant. (The court also recently issued a ruling determining that the procedures for challenging one’s inclusion on the government’s no-fly list are unconstitutional, another hopeful sign.)
Prior to the cell phone decision, law enforcement held that if someone was arrested for, say, a traffic violation, the police had the right to examine the full contents of his or her cell phone — call lists, photos, social media, contacts, whatever was on the device. Police traditionally have been able to search physical objects they find on an arrestee without a warrant on the grounds that such searches are for the protection of the officers.
In its new decision, however, the court acknowledged that cell phones represent far more than a “physical object.” The information they hold is a portrait of someone’s life like what’s in a closet at home or on a computer sitting on your desk. Searches of those locations almost always require a warrant.
Does this matter when talking about the NSA’s technological dragnet? Maybe. While the Supreme Court’s decision applies directly to street-level law enforcement, it does suggest an evolution within the court, a recognition of the way advances in technology have changed the Fourth Amendment. A cell phone is not an object anymore; it is now recognized as a portal to other information that a person has gathered in one place for convenience with, as of this decision, a reasonable expectation of privacy.
National Security Disclosures Under HIPPA
While the NSA’s electronic basket of violations of the Fourth Amendment were, pre-Snowden, meant to take place in utter secrecy, here’s a violation that sits in broad daylight: Since 2002, my doctor can disclose my medical records to the NSA without my permission or knowledge. So can yours.
Congress passed the Health Information Portability and Accountability Act (HIPPA) in 1996 “to assure that individuals’ health information is properly protected.” You likely signed a HIPPA agreement at your doctor’s office, granting access to your records. However, Congress quietly amended the HIPPA Act in 2002 to permit disclosure of those records for national security purposes. Specifically, the new version of this “privacy law” states: “We may also disclose your PHI [Personal Health Information] to authorized federal officials as necessary for national security and intelligence activities.” The text is embedded deep in your health care provider’s documentation. Look for it.
How does this work? We don’t know. Do the NSA or other agencies have ongoing access to the medical records of all Americans? Do they have to request specific ones? Do doctors have any choice in whose records to forward under what conditions? No one knows. My HMO, after much transferring of my calls, would ultimately only refer me back to the HIPPA text with a promise that they follow the law.
The Snowden revelations are often dismissed by people who wonder what they have to hide. (Who cares if the NSA sees my cute cat videos?) That’s why health care spying stands out. How much more invasive could it be than for your government to have unfettered access to such a potentially personal and private part of your life — something, by the way, that couldn’t have less to do with American “security” or combating terrorism.
Our health care providers, in direct confrontation with the Fourth Amendment, are now part of the metastasizing national security state. You’re right to be afraid, but for goodness sake, don’t discuss your fears with your doctor.
How the Unreasonable Becomes Reasonable
At this point, when it comes to national security matters, the Fourth Amendment has by any practical definition been done away with as a part of Post-Constitutional America. Whole books have been written just about Edward Snowden and more information about government spying regularly becomes available. We don’t lack for examples. Yet as the obviousness of what is being done becomes impossible to ignore and reassurances offered up by the president and others are shown to be lies, the government continues to spin the debate into false discussions about how to “balance” freedom versus security, to raise the specter of another 9/11 if spying is curtailed, and to fall back on that go-to “nothing to hide, nothing to fear” line.
In Post-Constitutional America, the old words that once defined our democracy are twisted in new ways, not discarded. Previously unreasonable searches become reasonable ones under new government interpretations of the Fourth Amendment. Traditional tools of law, like subpoenas and warrants, continue to exist even as they morph into monstrous new forms.
Americans are told (and often believe) that they retain rights they no longer have. Wait for the rhetoric that goes with the celebrations of our freedoms this July 4th. You won’t hear a lot about the NSA then, but you should. In pre-constitutional America the colonists knew that they were under the king’s thumb. In totalitarian states of the last century like the Soviet Union, people dealt with their lack of rights and privacy with grim humor and subtle protest. However, in America, ever exceptional, citizens passively watch their rights disappear in the service of dark ends, largely without protest and often while still celebrating a land that no longer exists.
America has entered its third great era: the post-constitutional one. In the first, in the colonial years, a unitary executive, the King of England, ruled without checks and balances, allowing no freedom of speech, due process, or privacy when it came to protecting his power.
In the second, the principles of the Enlightenment and an armed rebellion were used to push back the king’s abuses. The result was a new country and a new constitution with a Bill of Rights expressly meant to check the government’s power. Now, we are wading into the shallow waters of a third era, a time when that government is abandoning the basic ideas that saw our nation through centuries of challenges far more daunting than terrorism. Those ideas — enshrined in the Bill of Rights — are disarmingly concise. Think of them as the haiku of a genuine people’s government.
Deeper, darker waters lie ahead and we seem drawn down into them. For here there be monsters.
The Powers of a Police State Denied
America in its pre-constitutional days may seem eerily familiar even to casual readers of current events. We lived then under the control of a king. (Think now: the imperial presidency.) That king was a powerful, unitary executive who ruled at a distance. His goal was simple: to use his power over “his” American colonies to draw the maximum financial gain while suppressing any dissent that might endanger his control.
In those years, protest was dangerous. Speech could indeed make you the enemy of the government. Journalism could be a crime if you didn’t write in support of those in power. A citizen needed to watch what he said, for there were spies everywhere, including fellow colonists hoping for a few crumbs from the king’s table. Laws could be brutal and punishments swift as well as extra-judicial. In extreme cases, troops shot down those simply assembling to speak out.
Among the many offenses against liberty in pre-constitutional America, one pivotal event, the Stamp Act of 1765, stands out. To enforce the taxes imposed by the Act, the king’s men used “writs of assistance” that allowed them to burst into any home or business, with or without suspicion of wrongdoing. American privacy was violated and property ransacked, often simply as a warning of the king’s power. Some colonist was then undoubtedly the first American to mutter, “But if I have nothing to hide, why should I be afraid?” He soon learned that when a population is categorically treated as a potential enemy, everyone has something to hide if the government claims they do.
The Stamp Act and the flood of kingly offenses that followed created in those who founded the United States a profound suspicion of what an unchecked government could do, and a sense that power and freedom are not likely to coexist comfortably in a democracy. A balancing mechanism was required. In addition to the body of the Constitution outlining what the new nation’s government could do, needed was an accounting of what it could not do. The answer was the Bill of Rights.
The Bill’s preamble explained the matter this way: “…in order to prevent misconstruction or abuse of [the government's] powers, that further declaratory and restrictive clauses should be added.” Thomas Jefferson commented separately, “[A] bill of rights is what the people are entitled to against every government on earth.”
In other words, the Bill of Rights was written to make sure that the new government would not replicate the abuses of power of the old one. Each amendment spoke directly to a specific offense committed by the king. Their purpose collectively was to lay out what the government could never take away. Knowing first-hand the dangers of a police state and unchecked power, those who wrote the Constitution wanted to be clear: never again.
It needs to be said that those imperfect men were very much of their era. They were right about much, but desperately wrong about other things. They addressed “humanity,” but ignored the rights of women and Native Americans. Above all, they did not abolish the institution of slavery, our nation’s Original Sin. It would take many years, and much blood, to begin to rectify those mistakes.
Still, for more than two centuries, the meaning of the Bill of Rights was generally expanded, though — especially in wartime — it sometimes temporarily contracted. Yet the basic principles that guided America were sustained despite civil war, world wars, depressions, and endless challenges. Then, one September morning, our Post-Constitutional era began amid falling towers and empty skies. What have we lost since? More than we imagine. A look at the Bill of Rights, amendment by amendment, tells the tale.
The First Amendment
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The First Amendment was meant to make one thing indisputably clear: free speech was the basis for a government of the people. Without a free press, as well as the ability to openly gather, debate, protest, and criticize, how would the people be able to judge their government’s adherence to the other rights? How could people vote knowledgeably if they didn’t know what was being done in their name by their government? An informed citizenry, Thomas Jefferson stated, was “a vital requisite for our survival as a free people.”
That was how it was seen long ago. In Post-Constitutional America, however, the government strives to “control the message,” to actively thwart efforts to maintain a citizenry informed about what’s done in its name, a concept that these days seems as quaint as Jefferson’s powdered wig. There are far too many examples of the post-9/11 erosion of the First Amendment to list here. Let’s just look at a few important ones that tell the tale of what we have lost since 9/11.
(Lack of) Freedom of Information
In 1966, an idea for keeping Americans better informed on the workings of their government was hatched: the Freedom of Information Act (FOIA). Strengthened in 1974, it began with the premise that, except for some obvious categories (like serious national security matters and personal information), the position of the government should be: everything it does is available to the public. Like the Bill of Rights, which made specific the limits of government, FOIA began with a presumption that it was the government’s duty to make information available — and quickly — to the people, unless a convincing case could be made otherwise. The default position of the FOIA switch was set to ON.
Three decades later, the FOIA system works far differently. Agencies are generally loath to release documents of any sort and instead put their efforts into creating roadblocks to legitimate requests. Some still require signatures on paper. (The State Department notes, “Requests for personal information cannot be submitted electronically and should be submitted by mail.”) Others demand hyper-detailed information like the precise dates and titles of documents whose dates and titles may be classified and unavailable. The NSA simply denies almost all FOIA requests out of hand, absent a court order.
Most federal agencies now regard the deadline mandated for a response as the time period to send out a “request received” note. They tend to assign only a few staff members to processing requests, leading to near-endless delays. At the State Department, most FOIA work is done on a part-time basis by retirees. The CIA won’t directly release electronic versions of documents. Even when a request is fulfilled, “free” copying is often denied and reproduction costs exaggerated.
In some cases, the requested records have a way of disappearing or are simply removed. The ACLU’s experience when it filed an FOIA-style request with the Sarasota police department on its use of the cell phone surveillance tool Stingray could be considered typical. The morning the ACLU was to review the files, Federal Marshals arrived and physically took possession of them, claiming they had deputized the local cops and made the files federal property. An ACLU spokesperson noted that, in other cases, federal authorities have invoked the Homeland Security Act to prevent the release of records.
John Young, who runs the web site Cryptome and is a steadfast FOIA requester, stated, “Stonewalling, delay, brush-off, lying are normal. It is a delusion for ordinary requesters and a bitch of a challenge for professionals. Churning has become a way of life for FOIA, costly as hell for little results.”
Sealed Lips and the Whistleblower
All government agencies have regulations requiring employees to obtain permission before speaking to the representatives of the people — that is, journalists. The U.S. Intelligence Community has among the most restrictive of these policies, banning employees and contractors completely from talking with the media without prior authorization. Even speaking about unclassified information is a no-no that may cost you your job. A government ever more in lockdown mode has created what one journalist calls a “culture where censorship is the norm.”
So who does speak to Americans about their government? Growing hordes of spokespeople, communications staff, trained PR crews, and those anonymous “senior officials” who pop up so regularly in news articles in major papers.
With the government obsessively seeking to hide or spin what it does, in-the-sunlight contact barred, and those inside locked behind an iron curtain of secrecy, the whistleblower has become the paradigmatic figure of the era. Not surprisingly, anyone who blows a whistle has, in these years, come under fierce attack.
Pick a case: Tom Drake exposing early NSA efforts to turn its spy tools on Americans, Edward Snowden proving that the government has us under constant surveillance, Chelsea Manning documenting war crimes in Iraq and sleazy diplomacy everywhere, John Kiriakou acknowledging torture by his former employer the CIA, or Robert MacLean revealing Transportation Safety Administration malfeasance. In each instance, the threat of jail was quick to surface. The nuclear option against such truthtellers is the Espionage Act, a law that offended the Constitution when implemented in the midst of World War I. It has been resurrected by the Obama administration as a blunt “wartime” tool for silencing and punishing whistleblowers.
The Obama administration has already charged six people under that act for allegedly mishandling classified information. Even Richard Nixon only invoked it once, in a failed prosecution against Pentagon Papers whistleblower Daniel Ellsberg.
Indeed, the very word “espionage” couldn’t be stranger in the context of these cases. None of those charged spied. None sought to aid an enemy or make money selling secrets. No matter. In Post-Constitutional America, the powers-that-be stand ready to twist language in whatever Orwellian direction is necessary to bridge the gap between reality and the king’s needs. In the Espionage Act case of State Department contractor Stephen Kim, a judge departed from previous precedent, ruling that the prosecution need not even show that the information leaked to a Fox news reporter from a CIA report on North Korea could damage U.S. national security or benefit a foreign power. It could still be a part of an “espionage” charge.
A final question might be: How could a law designed almost 100 years ago to stop German spies in wartime have become a tool to silence the few Americans willing to risk everything to exercise their First Amendment rights? When did free speech become a crime?
Self-Censorship and the Press
Each person charged under the Espionage Act in these years was primarily a source for a journalist. The writers of the Bill of Rights chose to include the term “press” in the First Amendment, specifically carving out a special place for journalists in our democracy. The press was necessary to question government officials directly, comment on their actions, and inform the citizenry about what its government was doing. Sadly, as the Obama administration is moving ever more fiercely against those who might reveal its acts or documents, the bulk of the media have acquiesced. Glenn Greenwald said it plainly: too many journalists have gone into a self-censoring mode, practicing “obsequious journalism.”
For example, a survey of reporters showed “the percentage of U.S. journalists endorsing the occasional use of ‘confidential business or government documents without authorization,’ dropped significantly from 81.8% in 1992 to 57.7% in 2013.” About 40% of American journalists would not have published documents like those Edward Snowden revealed.
And the same has been true of the management of newspapers. In mid-2004, James Risen and Eric Lichtblau uncovered George W. Bush’s illegal warrantless eavesdropping program, but the New York Times held the story for 15 months, until after Bush’s reelection. Executives at the Times were told by administration officials that if they ran the story, they’d be helping terrorists. They accepted that. In 2006, the Los Angeles Times similarly gave in to the NSA and suppressed a story on government wiretaps of Americans.
Government Efforts to Stop Journalists
Reporters need sources. Increasingly, the government is classifying just about any document it produces — 92 million documents in 2011 alone. Its intelligence agencies have even classified reports about the over-classification of documents. As a result, journalistic sources are often pressed into discussing, at great personal risk, classified information. Forcing a reporter to reveal such sources discourages future whistleblowing.
In one of the first of a series of attempts to make journalists reveal their sources, former Fox News reporter Mike Levine stated that the Justice Department persuaded a federal grand jury to subpoena him in January 2011. The demand was that he reveal his sources for a 2009 story about Somali-Americans who were secretly indicted in Minneapolis for joining an al-Qaeda-linked group in Somalia. Levine fought the order and the Department of Justice finally dropped it without comment in April 2012. Call it a failed test case.
According to Washington lawyer Abbe Lowell, who defended Stephen Kim, significant amounts of time have been spent by the Department of Justice in the search for a legal rationale for indicting journalists for their participation in exposing classified documents. A crucial test case is James Risen’s 2006 book, State of War, which had an anonymously sourced chapter on a failed CIA operation to disrupt Iran’s nuclear program. When Risen, citing the First Amendment, refused to identify his source or testify in the trial of the former CIA officer accused of being that source, the government sought to imprison him. He responded that the “Obama administration… wants to use this case and others like it to intimidate reporters and whistleblowers. But I am appealing to the Supreme Court because it is too dangerous to allow the government to conduct national security policy completely in the dark.”
In June 2014, the Supreme Court refused to take Risen’s case on appeal, essentially ratifying a U.S. Court of Appeals decision that the First Amendment didn’t protect a reporter from being forced to testify about “criminal conduct that the reporter personally witnessed or participated in.” That decision makes clear that a reporter receiving classified information from a source is part of the crime of “leaking.”
Risen has said he will go to prison rather than testify. It is possible that, having secured the precedent-setting right to send Risen to jail, the government will bring the suspected leaker to trial without calling on him. Attorney General Eric Holder recently hinted that his Justice Department might take that path — a break for Risen himself, but not for reporters more generally who now know that they can be jailed for refusing to divulge a source without hope of recourse to the Supreme Court.
The Descent Into Post-Constitutionalism
As with the King of England once upon a time, many of the things the government now does have been approved in secret, sometimes in secret courts according to a secret body of law. Sometimes, they were even approved openly by Congress. In constitutional America, the actions of the executive and the laws passed by Congress were only legal when they did not conflict with the underlying constitutional principles of our democracy. Not any more. “Law” made in secret, including pretzeled legal interpretations by the Justice Department for the White House, opened the way, for instance, to the use of torture on prisoners and in the Obama years to the drone assassination of Americans. Because such “legalities” remain officially classified, they are, of course, doubly difficult to challenge.
But can’t we count on the usual pendulum swings in American life to change this? There were indeed notable moments in American history when parts of the Constitution were put aside, but none are truly comparable to our current situation. The Civil War lasted five years, with Lincoln’s suspension of habeas corpus limited in geography and robustly contested. The World War II Japanese internment camps closed after three years and the persecuted were a sub-set of Japanese-Americans from the West Coast. Senator McCarthy’s notorious career as a communist-hunter lasted four years and ended in shame.
Almost 13 years after the 9/11 attacks, it remains “wartime.” For the war on terror, the driver, excuse, and raison d’être for the tattering of the Bill of Rights, there is no end in sight. Recently retired NSA head Keith Alexander is typical of key figures in the national security state when he claims that despite, well, everything, the country is at greater risk today than ever before. These days, wartime is forever, which means that a government working ever more in secret has ever more latitude to decide which rights in which form applied in what manner are still inalienable.
The usual critical history of our descent into a post-constitutional state goes something like this: in the panic after the 9/11 attacks, under the leadership of Vice President Dick Cheney with the support of President George W. Bush, a cabal of top government officials pushed through legal-lite measures to (as they liked to say) “take the gloves off” and allow kidnapping, torture, illegal surveillance, and offshore imprisonment along with indefinite detention without charges or trial.
Barack Obama, elected on a series of (false) promises to roll back the worst of the Bush-era crimes, while rejecting torture and closing America’s overseas “black sites,” still pushed the process forward in his own way. He expanded executive power, emphasized drone assassinations (including against American citizens), gave amnesty to torturers, increased government secrecy, targeted whistleblowers, and heightened surveillance. In other words, two successive administrations lied, performed legal acrobatics, and bullied their way toward a kind of absolute power that hasn’t been seen since the days of King George. That’s the common narrative and, while not wrong, it is incomplete.
Missing Are the People
One key factor remains missing in such a version of post-9/11 events in America: the people. Even today, 45% of Americans, when polled on the subject, agree that torture is “sometimes necessary and acceptable to gain information that may protect the public.” Americans as a group seem unsure about whether the NSA’s global and domestic surveillance is justified, and many remain convinced that Edward Snowden and the journalists who published his material are criminals. The most common meme related to whistleblowers is still “patriot or traitor?” and toward the war on terror, “security or freedom?”
It’s not that Americans are incorrect to be fearful and feel in need of protection. The main thing we need to protect ourselves against, however, is not the modest domestic threat from terrorists, but a new king, a unitary executive that has taken the law for its own, aided and abetted by the courts, supported by a powerful national security state, and unopposed by a riven and weakened Congress. Without a strong Bill of Rights to protect us — indeed, secure us — from the dangers of our own government, we will have gone full-circle to a Post-Constitutional America that shares much in common with the pre-constitutional British colonies.
Yet there is no widespread, mainstream movement of opposition to what the government has been doing. It seems, in fact, that many Americans are willing to accept, perhaps even welcome out of fear, the death of the Bill of Rights, one amendment at a time.
We are the first to see, in however shadowy form, the outlines of what a Post-Constitutional America might look like. We could be the last who might be able to stop it.
People on the government’s no-fly list are denied their constitutional right to due process, because the government’s procedures to challenge inclusion on the secretive roster are “wholly ineffective,” U.S. District Judge Anna Brown declared in a case brought by thirteen American citizens and supported by the ACLU.
Important: The court did not declare the no-fly list itself unconstitutional per se, but did say that the lack of any effective system for knowing you are on the list (absent showing up at the airport and being denied boarding) and especially the lack of any real procedure for trying to clear your name and get off the list, are unconstitutional under the Fifth Amendment, as they deny people the Constitutional right to due process. Due process basically means the government cannot punish you, or take something away from you, without giving you the right to challenge that decision, typically in court with a lawyer.
Specifically, in a 65-page opinion, the Oregon judge ordered the government to come up with a new way for the thirteen plaintiffs to contest their inclusion on the no-fly list that prohibits them from flying in or through U.S. airspace. The government must provide notice to the plaintiffs that they are on the list and give the reasons for their inclusion. The judge also ordered that the government allow the plaintiffs to submit evidence to refute the government’s suspicions.
There is nothing, however, in the judge’s decision that negates or otherwise does away with the no-fly list. Because her decision took place only in a District Court, the government may appeal the case, perhaps as far as the Supreme Court.
What is the Current Appeals Process Like for the No-Fly List?
Understanding the importance of the judge’s decision requires understanding how the no-fly List “appeals” process works currently.
If you find yourself denied boarding, you must contact the Transportation Security Administration (TSA) via their TRIP Program and ask them to remove your name from the no-fly list. You might succeed just by asking nice; the TSA itself says that 99 percent of individuals who apply for redress are not on the terrorist watchlist, but are misidentified as people who are. To start, you use DHS’ online form. They strongly encourage an online submission, warning on their web site that “if documents are mailed, it may take 10-15 business days to receive your submission due to federal government mail screening requirements,” something left over from the very small and long ago anthrax powder letters mailed to a handful of people in 2001. Careful though– proving you are not a terrorist must be done in a 10 meg attachment or less or DHS will reject your request.
You are not currently allowed to know why, or based on what information, you are on the no-fly list. You just are. While you can ask a lawyer to help you prepare whatever you submit to DHS, you cannot be represented because you cannot otherwise interact with DHS.
The government argues in return that national security prevents a more open system– they can’t tip off the terrorists– and that limited judicial review covers any due process requirement. No-fly list appeals may ultimately go to a federal appellate court, but that court makes decisions based only on government input. The person affected is not even present and will never know what evidence the government presented against him in this secret court.
What if You’re Not a Terrorist?
If DHS agrees you are not a terrorist, you get a redress number which you can use when booking a ticket. There is never an explanation, and DHS is not allowed to tell you you are still on the no-fly list, or ever were, or why they did or did not issue you a redress number. If you never hear back from DHS and wonder if you are allowed to fly, the only way to tell is to buy another ticket and see if you can board. Repeat. Even with a redress number that clears your name in theory, DHS advises arriving at the airport extra early in anticipation of extra screening and questioning.
There are no deadlines for an answer from DHS. They may take weeks, months or forever to reply to you. Meanwhile, you, as an official dangerous person, will be able to travel by ship, train, bus, rental car, horseback, donkey cart, ferry, private rented plane, unicycle or other means. Of course none of those conveyances have TSA screening or security.
How Do You Get on No-Fly in the First Place?
On September 10, 2001, there wasn’t any formal no-fly list, though the FBI held a folder of 16 names of suspicious flyers. Among the many changes pressed on a scared population starting September 12 was the creation of two lists: the no-fly list and the selectee list. The latter was for person who would undergo additional scrutiny when they sought to fly. The former, like its name, meant if your name was on the list you simply could not board a flight inside the U.S., out of the U.S. or from some other country into the U.S.
The flight ban can also extend far outside of America’s borders. The no-fly list is shared with 22 other countries.
Names are nominated for no-fly or selectee by one of perhaps hundreds of thousands of government officials: an FBI agent, a CIA analyst, a State Department visa officer and so forth. Each nominating agency has its own criteria, standards and approval processes, some strict, some pretty sloppy. Your name may end up on the list based on scraps of online postings or as the result of a multi-year detailed investigation or because of a bureaucratic typo. The nominated name is sent to The Terrorist Screening Center (TSC), located in a classified location in suburban Northern Virginia. TSC is a multi-agency organization administered by the FBI, staffed by officials from the Department of Homeland Security, the Department of State, and all of the intel community.
A key issue is that people are never notified they are on the no-fly list. The only way to even get a hint is to buy an airplane ticket and be prevented from boarding once you arrive at the airport after at check-in the airline receives a “no-fly” message. Through the interrogation process you may (or you may not) learn you might live in the list. You will never have any idea why you are on the list; maybe you share a similar name with some real or imagined bad guy. Still on the list? The only way to tell is to buy another ticket and see if you can board. Repeat.
Want to read about the ultimate No-Fly list nightmare?
In the case of Stingray, a cell phone spying device used against Americans, the government does have something to hide and they fear the release of more information. Meanwhile, the Fourth Amendment weeps quietly in the corner.
Cell phone technology is very useful to the cops to locate you and to track your movements. In addition to whatever as-yet undisclosed things the NSA may be up to on its own, the FBI acknowledges a device called Stingray to create electronic, “fake,” cell phone towers and track people via their phones in the U.S. without their knowledge. The tech does not require a phone’s GPS. This technology was first known to have been deployed against America’s enemies in Iraq, and it has come home to be used against a new enemy– you.
Stingray, also known as an International Mobile Subscriber Identity, or IMSI, catcher, works like this. The cell network is designed around triangulation and whenever possible your phone is in constant contact with at least three towers. As you move, one tower “hands off” your signal to the next one in your line of motion. Stingray electronically inserts itself into this process as if it was a (fake; “spoofed”) cell tower itself to grab location data before passing your legitimate signal back to the real cell network. The handoffs in and out of Stingray are invisible to you. Stingrays also “inadvertently” scoop up the cell phone data of anyone within several kilometers of the designated target person. Though typically used to collect location metadata, Stingray can also capture conversations, texts and mobile web use if needed.
Stingray offers some unique advantages to a national security state: it bypasses the phone company entirely, which is handy if laws change and phone companies no longer must cooperate with the government, or simply if the cops don’t want the phone company or anyone else to know they’re snooping.
This has led the Electronic Frontier Foundation (EFF) to warn “A Stingray— which could potentially be beamed into all the houses in one neighborhood looking for a particular signal— is the digital version of the pre-Revolutionary war practice of British soldiers going door-to-door, searching Americans’ homes without rationale or suspicion, let alone judicial approval… [Stingray is ] the biggest technological threat to cell phone privacy.”
Trying to Learn about Stingray
Learning how Stingray works is difficult.
The Electronic Privacy Information Center filed a FOIA request for more information on Stingrays, but the FBI is sitting on 25,000 pages of documents explaining the device that it won’t release.
The device itself is made by the Harris Corporation. Harris makes electronics for commercial use and is a significant defense contractor. For Stingray, available only to law enforcement agencies, Harris requires a non-disclosure agreement that police departments around the country have been signing for years explicitly prohibiting them from telling anyone, including other government bodies, about their use of the equipment “without the prior written consent of Harris.”
A price list of Harris’ spying technology, along with limited technical details, was leaked online, but that’s about all we know.
Though the non-disclosure agreement includes an exception for “judicially mandated disclosures,” there are no mechanisms for judges even to learn that the equipment was used at all, thus cutting off any possibility they could know enough demand disclosure. In at least one case in Florida, a police department revealed that it had decided not to seek a warrant to use the technology explicitly to avoid telling a judge about the equipment. It subsequently kept the information hidden from the defendant as well. The agreement with Harris goes further to require law enforcement to notify Harris any time journalists or anyone else files a public records request to obtain information about Stingray and also demands the police department assist Harris in deciding what information to release.
Something to Hide
An evolving situation in Florida shows how hard the government is working to keep the details of its Stingray spying on Americans secret.
The ACLU originally sought Stingray records in Sarasota, Florida after they learned a detective there obtained permission to use the device simply by filing an application with a local court, instead of obtaining a probable-cause warrant as once was required by the Fourth Amendment of the Constitution. It became clear that the Sarasota police had additionally used Stingray at least 200 times since 2010 without even the minimal step of even notifying a judge. In line with the non-disclosure agreement, very rarely were arrested persons advised that Stingray data was used to locate and prosecute them.
The ACLU, which earlier in 2014 filed a Florida state-level FOIA-type request with the Sarasota police department for information detailing its use of Stingray, had an appointment with the local cops to review documents. The local police agreed to the review. However, the June 2014 morning of the ACLU’s appointment, U.S. Marshals arrived ahead of them and physically took possession of the files. The Marshals barred the Sarasota police from releasing them. The rationale used by the federal government was that having quickly deputized a Sarasota cop, all Sarasota records became federal property.
“This is consistent with what we’ve seen around the country with federal agencies trying to meddle with public requests for Stingray information,” an ACLU spokesperson said, noting that federal authorities have in other cases invoked the Homeland Security Act to prevent the release of such records. “The feds are working very hard to block any release of this information to the public.”
A Court Says the Feds Can Hide the Records
Following the feds’ seizure of the Stingray records, the ACLU filed an emergency motion with a Florida court that would require Sarasota to make its Stingray records available. However, in a decision issued June 17, 2014, a Florida state circuit court judge found that his court lacked jurisdiction over a federal agency, allowing the transfer of the Stingray documents to the feds and de facto blocking their release.
The ACLU plans further appeals. Unless and until they succeed, details of another way of spying on Americans will remain secret. The government does indeed have something to hide.
Our Town, a New York City newspaper, recently published this article by Daniel Fitzsimmons, profiling me and my book, Ghosts of Tom Joad: A Story of the #99Percent.
Peter Van Buren is an Upper East Sider and a 24-year veteran of the State Department. His experience there – including a one-year deployment to Iraq – led to him write his first book, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People (MacMillan, 2011). Even before it was released, the book was frowned upon by higher ups at the State Department and they began proceedings against him for allegedly publishing classified information. He managed to beat the rap and retire with full benefits, with help from the same lawyers now representing Edward Snowden. For several years, however, Van Buren’s pension and the future of his family were at risk.
During his legal battle with the State Department, Van Buren was forced to work in the low-wage retail sector of the American economy to make ends meet. That experience is the basis for his second book, a novel, Ghosts of Tom Joad: A Story of the #99 Percent, published this year by Luminis Books. The book examines the social and economic changes in America between World War II and the decline of the blue collar middle class in the 1980s.
Van Buren, 53, grew up in New York and now lives at 2nd Avenue and East 93rd Street.
“I was born in New York, went to college in Ohio, and then moved around the world with my State Department job as a diplomat for 24 years,” he said. “After retirement, I wanted to leave Washington D.C. and re-immerse myself in this amazing city. Best decision I ever made.”
What would you say the central thesis is of your first book? Why did you decide to write it and what were some of the obstacles you faced?
We Meant Well’s thesis was two-fold: One, to document exactly how the U.S. failed in its hearts and minds mission in Iraq, the failure on the ground of the counter-insurgency “win over the people” plan of then-general David Petraeus and Secretary of State Condi Rice. The larger point was to offer lessons for how to better accomplish those goals in the hearts and minds campaign in Afghanistan. Given how poorly U.S. efforts are going in Afghanistan, now 13 years and $109 billion of reconstruction spending into the war, I guess no one took my advice. I’m actually thinking of franchising the title, We Meant Well, Too.
It was published in 2011, how long after its release did you start receiving attention from the State Department? What was their case against you built upon?
The State Department is a lot like the Mafia: rule number one is that you don’t talk about family business outside the family. I broke omerta and, through my book, pointed out in quite specific detail the things State did and did not do in Iraq that contributed to the failures there. Reaction from State was sharp, and began even before the book was officially published.
Why did you decide to take a position with your book that you knew would be frowned upon by the administration?
When anyone decides to blow the whistle and take on the entire resources of the U.S. government, it is motivated by conscience, the idea that what needs to be said is bigger than yourself. My whistle-blowing was nowhere close to what Chelsea Manning and Edward Snowden did, and my punishment nowhere as severe, but the motivations are the same. I saw terrible waste and mismanagement in Iraq, wastes of money and, more significantly, both American and Iraqi lives. No one else was reporting on this; indeed, because of the way State presented itself, no one but someone from the inside could have reported it to the American people. It was on me to step up. I did.
How, ultimately, were you able to withstand the State Department’s efforts against you and retire with full benefits?
State tried first to stop the book, then to claim, falsely, that the book contained classified information, then to unsuccessfully prosecute me, then to fire me and take away my pension. I’ll admit, pre-Manning and pre-Snowden, I was naïve. I thought I’d get into some kind of trouble, but never saw the tsunami coming. I prevailed over the government thanks to the efforts of the Government Accountability Project, specifically Jess Radack and Kathleen McClellan. Both of these women now help represent Edward Snowden, by the way. I also was defended by the ACLU, who saw my struggle as a First Amendment issue, the right to publish. I won and the government lost. I went on to retire from State, and collect the benefits I earned from my 24 years of service.
After your first book, how did you come to the decision to turn to domestic issues in Ghosts of Tom Joad: A Story of the #99 Percent?
Following State, I went to work in the minimum wage economy, not planning on another book. But what I saw shocked me. In an odd way, I had my first taste of the life of the one percent while in Iraq: unlike most Iraqis, I had more food and amenities than I could squander, nearly unlimited funds to spend as I wished (as long as the spending supported us one-percenters) and plenty of Army muscle around to keep the 99 percent at bay.
I returned to America to find another sort of regime change underway, only I wasn’t among the one percent for this one. I worked instead in America’s new minimum-wage economy, and saw firsthand what a life based on lousy wages and barely-adequate food benefits adds up to. There were no cruise missiles deployed to create the changes, but the cumulative effects of years of deindustrialization, declining salaries, absent benefits, decimated unions, the undertow of meth and alcohol abuse pulling at our people, the broad-based loss of jobs and of course wealth inequality on a radical scale was quite familiar. The willful destruction of a way of life in service to the goals of the one percent anywhere was hard to miss, but I still wanted a clearer picture. My research and experiences drive me to write about this all, and the result is Ghosts of Tom Joad.
Ghosts of Tom Joad is a reimagining of Steinbeck’s classic Grapes of Wrath, brought into our own era. The book traces the dilution of our middle class, their replacement with the working poor, and examines the effects of this not just on our economy, but on our society, our nation, our America. Like Grapes of Wrath, Ghosts is a factual look at ourselves wrapped in fiction, in this case, a single Ohio family touched by the changes in America from the 1950s through today.
I think of it as a good story, but with a conscience.
Here’s my interview about the First Amendment and America’s descent into a state I call Post-Constitutional America with host Burt Cohen, on WOOL, 91.5 FM in Vermont, and WNHN 94.7 FM in New Hampshire.
The full interview online.
Chroniclers of the decline of the republic will recall March 2014. Speaking then in reference to revelations that the CIA searched computers being used by Senate staffers, and removed documents those staffers received from the CIA detailing its post-9/11 torture program, Senate Intelligence Committee Chairman Dianne Feinstein said:
I have grave concerns that the CIA’s search may well have violated the separation of powers principles embodied in the United States Constitution, including the Speech and Debate Clause. It may have undermined the constitutional framework essential to effective congressional oversight of intelligence activities.
[CIA actions] may also have violated the Fourth Amendment, the Computer Fraud and Abuse Act, as well as Executive Order 12333, which prohibits the CIA from conducting domestic searches or surveillance.
Feinstein went on to say then “The interrogations and the conditions of confinement at the CIA detentions sites were far different and far more harsh than the way the CIA had described them to us” and emphasized that her committee’s report would detail “the horrible details of the CIA program that never, never, never should have existed.”
It appears more than likely the files the CIA pulled out of the Senate’s hands would reveal two presidents lied to the world about the torture program, and that horrors beyond what we know were committed in our names.
A classified 6,300-page Senate report on torture was prepared 19 months ago, before the details of the CIA spying became public. Calls were made, in March 2014, to declassify parts and release them to the public. Now, in July, we are still waiting.
The Constitutional Crisis
The bulk of the Constitution is a road map to the checks and balances the Founders created to ensure no one part of government would become so strong and powerful so as to negate the others. Chief among those checks and balances is the oversight role Congress plays over the Executive branch. Simply put, Congress investigates what the Executive does. That is what Dianne Feinstein and her Senate Intelligence Committee were doing looking into the truth behind the lies of CIA torture.
When the Executive, using the CIA in this instance (and there are credible claims Obama personally knew of the CIA’s activities ahead of time), inserts itself wrongly in that process by spying on and manipulating evidence of the Committee, you have a Constitutional crisis. The essential checks and balances designed to sustain our democracy and rein in an out-of-control Executive are no longer functioning.
The Obama administration declined to get involved. Then-White House spokesperson Jay Carney announced Obama administration lawyers were told about the CIA’s intentions to have the Department of Justice investigate Senate staffers for potentially stealing classified documents they sought to hold on to after the CIA tried to delete them by spying on and penetrating the records database, but did not approve or weigh in on the agency’s decision.
With the White House choosing the sidelines, a DOJ investigation, no matter the motive, was the only check and balance to be applied to this crisis of power, and the only hope for public clarity about what really happened.
The DOJ Declines Intervening on the Side of the Constitution
On July 10, 2014, DOJ released a short statement: “The department carefully reviewed the matters referred to us and did not find sufficient evidence to warrant a criminal investigation.” There will be no reckoning of what the CIA did to conceal or influence the Senate report.
Previously, in 2012, the Justice Department closed an inquiry into prosecuting low-level CIA practitioners of torture without bringing any charges.
Post-Constitutional America, Again
Dianne Feinstein appears to have made no comment on the DOJ decision despite her central role in all this and previous claims of unconstitutional actions by the Executive. As this is written, her most recent public remarks deal with immigration. The last reference found on her official website to the torture report is from April 2014.
The CIA attacks on the Senate, designed to impede, alter or influence the outcome of a report on torture, coupled with a lack of concern from the White House and the Department of Justice, as well as apparently by the chair of the Senate Intelligence Committee itself, are another example of our new world, a Post-Constitutional America where the old rules of an aging republic no longer apply.
I again join the Alex Jones Show, with guest host Dave Knight, to discuss the devolving situation in Iraq, and my new book Ghosts of Tom Joad. My portion of the show begins about two hours and eight minutes in, so feel free to fast forward to the good stuff below, or jump right to it with this link.
Last year eight Americans — the four Waltons of Walmart fame, the two Koch brothers, Bill Gates, and Warren Buffett — made more money than 3.6 million American minimum-wage workers combined. The median pay for CEOs at America’s large corporations rose to $10 million per year, while a typical chief executive now makes about 257 times the average worker’s salary, up sharply from 181 times in 2009. Overall, 1% of Americans own more than a third of the country’s wealth.
As the United States slips from its status as the globe’s number one economic power, small numbers of Americans continue to amass staggering amounts of wealth, while simultaneously inequality trends toward historic levels. At what appears to be a critical juncture in our history and the history of inequality in this country, here are nine questions we need to ask about who we are and what will become of us. Let’s start with a French economist who has emerged as an important voice on what’s happening in America today.
1) What does Thomas Piketty have to do with the 99%?
French economist Thomas Piketty’s surprise best-seller, Capital in the Twenty-First Century, is an unlikely beach read, though it’s selling like one. A careful parsing of massive amounts of data distilled into “only” 700 pages, it outlines the economic basis for the 1%-99% divide in the United States. (Conservative critics, of course, disagree.)
Just in case you aren’t yet rock-bottom certain about the reality of that divide, here are some stats: the top 1% of Americans hold 35% of the nation’s net worth; the bottom 80%, only 11% percent. The United States has such an unequal distribution of wealth that, in global rankings, it falls among the planet’s kleptocracies, not the developed nations that were once its peers. The mathematical measure of wealth-inequality is called “Gini,” and the higher it is, the more extreme a nation’s wealth-inequality. The Gini for the U.S. is 85; for Germany, 77; Canada, 72; and Bangladesh, 64. Nations more unequal than the U.S. include Kazakhstan at 86 and the Ukraine at 90. The African continent tips in at just under 85. Odd company for the self-proclaimed “indispensable nation.”
Piketty shows that such inequality is driven by two complementary forces. By owning more of everything (capital), rich people have a mechanism for getting ever richer than the rest of us, because the rate of return on investment is higher than the rate of economic growth. In other words, money made from investments grows faster than money made from wages. Piketty claims the wealth of the wealthiest Americans is rising at 6%-7% a year, more than three times as fast as the economy the rest of us live in.
At the same time, wages for middle and lower income Americans are sinking, driven by factors also largely under the control of the wealthy. These include the application of new technology to eliminate human jobs, the crushing of unions, and a decline in the inflation-adjusted minimum wage that more and more Americans depend on for survival.
The short version: A rising tide lifts all yachts.
2) So why don’t the unemployed/underemployed simply find better jobs?
Another way of phrasing this question is: Why don’t we just blame the poor for their plight? Mention unemployment or underemployment and someone will inevitably invoke the old “pull yourself up by your bootstraps” line. If workers don’t like retail or minimum-wage jobs, or if they can’t find good paying jobs in their area, why don’t they just move? Quit retail or quit Pittsburgh (Detroit, Cleveland, St. Louis) and…
Move to where to do what? Our country lost one-third of all decent factory jobs — almost six million of them — between 2000 and 2009, and wherever “there” is supposed to be, piles of people are already in line. In addition, many who lost their jobs don’t have the means to move or a friend with a couch to sleep on when they get to Colorado. Some have lived for generations in the places where the jobs have disappeared. As for the jobs that are left, what do they pay? One out of four working Americans earn less than $10 per hour. At 25%, the U.S. has the highest percentage of low-wage workers in the developed world. (Canada and Great Britain have 20%, Japan under 15%, and France 11%.)
One in six men, 10.4 million Americans aged 25 to 64, the prime working years, don’t have jobs at all, a portion of the male population that has almost tripled in the past four decades. They are neither all lazy nor all unskilled, and at present they await news of the uncharted places in the U.S. where those 10 million unfilled jobs are hidden.
Moving “there” to find better work isn’t an option.
3) But aren’t there small-scale versions of economic “rebirths” occurring all over America?
Travel through some of the old Rust Belt towns of this country and you’ll quickly notice that “economic rebirth” seems to mean repurposing buildings that once housed factories and shipping depots as bars and boutiques. Abandoned warehouses are now trendy restaurants; a former radiator factory is an artisanal coffee shop. In other words, in a place where a manufacturing plant once employed hundreds of skilled workers at union wages, a handful of part-timers are now serving tapas at minimum wage plus tips.
In Maryland, an ice cream plant that once employed 400 people with benefits and salaries pegged at around $40,000 a year closed its doors in 2012. Under a “rebirth” program, a smaller ice cream packer reopened the place with only 16 jobs at low wages and without benefits. The new operation had 1,600 applicants for those 16 jobs. The area around the ice cream plant once produced airplanes, pipe organs, and leather car seats. No more. There were roughly 14,000 factory jobs in the area in 2000; today, there are 8,000.
In Louisville, Kentucky, more than 5,500 people applied for what turned out to be just 50 factory jobs in 2013, some of them temporary, paying $15.78 per hour at Ford Motor Company’s Fern Valley Road plant. State unemployment officials sifted through the thousands of applications and forwarded them to Ford staff, who narrowed the field by lottery (which in itself says something about the skill levels of the jobs offered.) The wage offered to new employees is about half what union workers receive.
In January 2014, Ford announced it would hire another 350 people, to be pulled from an existing pool of 10,000 applicants. State officials in Kentucky approved $290 million in financial incentives, using taxpayer money, to bring those jobs to Louisville. The impact of those jobs is shockingly minimal; unemployment in the area is 8.2 percent, much higher than the U.S. national average. There are some 52,763 people in the Louisville metro area unable to find work, not including those working part-time jobs or who have given up trying to find work at all.
Also in in Louisville, Kentucky, General Electric’s Appliance Park, once employed 23,000 union workers at its peak in 1973. By 2011, the sputtering plant held onto only about 1,800 workers. What was left of the union there agreed to a two-tier wage scale, and today 70% of the jobs are on the lower tier — at $13.50 an hour, almost $8 less than what the starting wage used to be. A full-time worker makes about $28,000 a year before taxes and deductions. The poverty line for a family of four in Kentucky is $23,000. Food stamp benefits are available to people who earn up to 130% of the poverty line, so a full-timer in Kentucky with a family still qualifies. Even if a worker moved to Kentucky and lucked out by landing a job at the plant, standing on your tiptoes with your lips just above sea level is not much of a step up.
Only a generation ago, Bethlehem, Pennsylvania had a steel mill that employed 31,500 people. They were not alone; in the final quarter of what was to be the American Century, some 1.5 million steelworkers lost their jobs. Including all benefits, an average union steelworker made $26.12 per hour then, the equivalent of $40.66 today. It was enough to create one of the most powerful economies on earth, supported by a robust middle class driving demand for housing, cars, everything.
It is common in such circumstances to blame greedy workers, and decry how their fate was tied to selfishness and out-of-control unions. But that would be wrong, or at least only part of the story. The ratio of CEO salary-to-average-worker-salary in 1980 was 42:1, climbing to 120:1 in 2000 and stands at 204:1 today. So indeed among the complex factors that changed America’s economic landscape, greed and selfishness did indeed play a part. It is just incorrect to blame it on the workers themselves.
Low paying jobs are not a rebirth.
4) Can’t people just get off their couches and get back to work?
There are 3.8 million Americans who have been out of work for 27 weeks or more. These are the country’s long-term unemployed, as defined by the Department of Labor. Statistically, the longer you are unemployed, the less likely it is that you’ll ever find work again. Between 2008 and 2012, only 11% of those unemployed 15 months or more found a full-time job, and research shows that those who do find a job are less likely to retain it. Think of it as a snowball effect: more unemployment creates more unemployable people.
And how hard is it to land even a minimum-wage job? This year, the Ivy League college admissions acceptance rate was 8.9%. Last year, when Walmart opened its first store in Washington, D.C., there were more than 23,000 applications for 600 jobs, which resulted in an acceptance rate of 2.6%, making the big box store about twice as selective as Harvard and five times as choosy as Cornell.
Telling unemployed people to get off their couches (or out of the cars they live in or the shelters where they sleep) and get a job makes as much sense as telling them to go study at Harvard.
5) Why can’t former factory workers retrain into new jobs?
Janesville, Wisconsin, had the oldest General Motors car factory in America, one that candidate Obama visited in 2007 and insisted would be there for another 100 years. Two days before Christmas that year and just before Obama’s inauguration, the plant closed forever, throwing 5,000 people out of work. This devastated the town, because you either worked in the plant or in a business that depended on people working in the plant. The new president and Congress quickly paid for a two-million-dollar Janesville retraining program, using state community colleges the way the government once used trade schools built to teach new immigrants the skills needed by that Janesville factory a century ago.
This time around, however, those who finished their retraining programs simply became trained unemployables rather than untrained ones. It turned out that having a certificate in “heating and ventilation” did not automatically lead to a job in the field. There were already plenty of people out there with such certificates, never mind actual college degrees. And those who did find work in some field saw their take-home pay drop by 36%. This, it seems, is increasingly typical in twenty-first-century America (though retraining programs have been little studied in recent years).
Manufacturing is dead and the future lies in a high-tech, information-based economy, some say. So why can’t former factory workers be trained to do that? Maybe some percentage could, but the U.S. graduated 1,606,000 students with bachelor’s degrees in 2014, many of whom already have such skills.
Bottom Line: Jobs create the need for training. Training does not create jobs.
6) Shouldn’t we cut public assistance and force people into the job market?
At some point in any discussion of jobs, someone will drop the nuclear option: cut federal and state benefits and do away with most public assistance. That’ll motivate people to find jobs — or starve. Unemployment money and food stamps (now called the Supplemental Nutrition Assistance Program, or SNAP) encourage people to be lazy. Why should tax dollars be used to give food to people who won’t work for it? “If you’re able-bodied, you should be willing to work,” former House Majority Leader Eric Cantor said discussing food stamp cuts.
The problem with such statements is 73% of those enrolled in the country’s major public benefits programs are, in fact, from working families — just in jobs whose paychecks don’t cover life’s basic necessities. McDonald’s workers alone receive $1.2 billion in federal assistance per year.
Why do so many of the employed need food stamps? It’s not complicated. Workers in the minimum-wage economy often need them simply to survive. All in all, 47 million people get SNAP nationwide because without it they would go hungry.
In Ohio, where I did some of the research for my book Ghosts of Tom Joad, the state pays out benefits on the first of each month. Pay Day, Food Day, Mother’s Day, people call it. SNAP is distributed in the form of an Electronic Bank Transfer card, or EBT, which, recipients will tell you, stands for “Eat Better Tonight.” EBT-friendly stores open early and stay open late on the first of the month because most people are pretty hungry come the Day.
A single person with nothing to her name in the lower 48 states would qualify for no more than $189 a month in SNAP. If she works, her net monthly income is multiplied by .3, and the result is subtracted from the maximum allotment. Less than fifty bucks a week for food isn’t exactly luxury fare. Sure, she can skip a meal if she needs to, and she likely does. However, she may have kids; almost two-thirds of SNAP children live in single-parent households. Twenty percent or more of the child population in 37 states lived in “food insecure households” in 2011, with New Mexico (30.6%) and the District of Columbia (30%) topping the list. And it’s not just kids. Households with disabled people account for 16% of SNAP benefits, while 9% go to households with senior citizens.
Almost 22% of American children under age 18 lived in poverty in 2012; for those under age five, it’s more than 25%. Almost 1 in 10 live in extreme poverty.
Our system is trending toward asking kids (and the disabled, and the elderly) to go to hell if they’re hungry. Many are already there.
7) Why are Walmart and other businesses opposed to SNAP cuts?
Public benefits are now a huge part of the profits of certain major corporations. In a filing with the Securities and Exchange Commission, Walmart was oddly blunt about what SNAP cuts could do to its bottom line:
“Our business operations are subject to numerous risks, factors, and uncertainties, domestically and internationally, which are outside our control. These factors include… changes in the amount of payments made under the Supplemental Nutrition Assistance Plan and other public assistance plans, [and] changes in the eligibility requirements of public assistance plans.”
How much profit do such businesses make from public assistance? Short answer: big bucks. In one year, nine Walmart Supercenters in Massachusetts received more than $33 million in SNAP dollars — more than four times the SNAP money spent at farmers’ markets nationwide. In two years, Walmart received about half of the one billion dollars in SNAP expenditures in Oklahoma. Overall, 18% of all food benefits money is spent at Walmart.
Pepsi, Coke, and the grocery chain Kroger lobbied for food stamps, an indication of how much they rely on the money. The CEO of Kraft admitted that the mac n’ cheese maker opposed food stamp cuts because users were “a big part of our audience.” One-sixth of Kraft’s revenues come from food stamp purchases. Yum Brands, the operator of KFC, Taco Bell, and Pizza Hut, tried to convince lawmakers in several states to allow its restaurants to accept food stamps. Products eligible for SNAP purchases are supposed to be limited to “healthy foods.” Yet lobbying by the soda industry keeps sugary drinks on the approved list, while companies like Coke and Pepsi pull in four billion dollars a year in revenues from SNAP money.
There is another side to big retail and fast food’s support for food stamps.
There is much talk about the minimum wage. What was once a way for teenagers and college kids to earn a little pocket money has devolved into the take-home pay for a vast swath of America. Defenders of a low minimum wage insist that most of us benefit from workers being paid very little; lower wages mean lower costs for Walmart and others, and so lower prices for us.
Makes sense, except that it is not true.
The difference between what Walmart pays the majority of its employees and what those employees need is made up by taxpayers in the form of food stamps and other assistance. Walmart is America’s largest private employer, so we’ll use them here for most of the examples, but this applies across the board.
Choose your statistic to understand the problem: about 25% of all employed people in the U.S. receive some form of public assistance; in the fast food industry, it is 53%. About 1 out of every 3 retail workers gets public assistance. In sum, American taxpayers subsidize the minimum wage with $7 billion in public assistance.
Let’s break it into a smaller piece: After analyzing data released by Wisconsin’s Medicaid program, the House Committee on Education and the Workforce estimates that a single 300-person WalMart in Wisconsin costs taxpayers $5,815 per Walmart associate in public assistance paid.
What about higher prices? The quick answer should be obvious by now. Whatever you think you are saving at the cash register in Walmart due to those lower wages, you as a taxpayer are paying anyway in taxes to feed the woman ringing you up. If store paid a living wage, step one would a lessening in demand for public assistance. Ka-ching, lower taxes!
But let’s follow the money. Walmart consistently pays the lowest wages they possibly can, and claims that keeps prices down. Walmart is not alone in this practice; the average family’s income is lower today than at any point in the last ten years, income inequality more extreme than at any point since before the Great Depression. The U.S. now has the highest proportion of low-wage workers in the developed world. The fall in wages parallels another trend line: in January of 2013, the Bureau of Labor Statistics reported that union membership had reached a 97 year low in America.
Poverty is big business.
8 ) Should we raise the minimum wage?
One important reason to raise the minimum wage to a living one is that people who can afford to feed themselves will not need food stamps paid for by taxpayers. Companies who profit off their workers’ labor will be forced to pay a fair price for it, and not get by on taxpayer-subsidized low wages. Just as important, people who can afford to feed themselves earn not just money, but self-respect. The connection between working and taking care of yourself and your family has increasingly gone missing in America, creating a society that no longer believes in itself. Rock bottom is a poor foundation for building anything human.
But won’t higher wages cause higher prices? The way taxpayers functionally subsidize companies paying low-wages to workers — essentially ponying up the difference between what McDonald’s and its ilk pay and what those workers need to live via SNAP and other benefits — is a hidden cost squirreled away in plain sight. You’re already paying higher prices via higher taxes; you just may not know it.
Even if taxes go down, won’t companies pass on their costs? Maybe, but they are unlikely to be significant. For example, if McDonald’s doubled the salaries of its employees to a semi-livable $14.50 an hour, not only would most of them go off public benefits, but so would the company — and yet a Big Mac would cost just 68 cents more. In general, only about 20% of the money you pay for a Big Mac goes to labor costs. At Walmart, increasing wages to $12 per hour would cost the company only about one percent of its annual sales.
Despite labor costs not being the most significant factor in the way low-wage businesses set their prices, one of the more common objections to raising the minimum wage is that companies, facing higher labor costs, will cut back on jobs. Don’t believe it.
The Los Angeles Economic Round Table concluded that raising the hourly minimum to $15 in that city would generate an additional $9.2 billion in annual sales and create more than 50,000 jobs. A Paychex/IHS survey, which looks at employment in small businesses, found that the state with the highest percentage of annual job growth was Washington, which also has the highest statewide minimum wage in the nation. The area with the highest percentage of annual job growth was San Francisco, the city with the highest minimum wage in the nation. Higher wages do not automatically lead to fewer jobs. Many large grocery chains, including Safeway and Kroger, are unionized and pay well-above-minimum wage. They compete as equals against their non-union rivals, despite the higher wages.
Will employers leave a state if it raises its minimum wage independent of a nationwide hike? Unlikely. Most minimum-wage employers are service businesses that are tied to where their customers are. People are not likely to drive across state lines for a burger. A report on businesses on the Washington-Idaho border at a time when Washington’s minimum wage was nearly three bucks higher than Idaho’s found that the ones in Washington were flourishing.
While some businesses could indeed decide to close or cut back if the minimum wage rose, the net macro gains would be significant. Even a small hike to $10.10 an hour would put some $24 billion a year into workers’ hands to spend and lift 900,000 Americans above the poverty line. Consumer spending drives 70% of our economy. More money in the hands of consumers would likely increase the demand for goods and services, creating jobs.
9) Profit Before People
Where could the money to pay workers a living wage come from, except of course by raising prices?
The top one percent of income earners garnered 93 percent of income gains in the recent recovery. In the third quarter of 2012, corporate profits reached $1.75 trillion, their greatest share of GDP in history. During that same quarter, workers’ wages fell to their lowest share of GDP on record. The top six members of the Walton family (owners of Walmart) own as much wealth as 48 million other Americans combined. Meanwhile, among 35 economically advanced nations, the U.S. has the second highest rate of child poverty, 23%, just slightly better than Romania.
Yes, raise the minimum wage. Double it or more. We can’t afford not to.
10) Okay, after the minimum wage is raised, what else can we do?
To end such an article, it’s traditional to suggest reforms, changes, solutions. It is, in fact, especially American to assume that every problem has a “solution.” So my instant suggestion: raise the minimum wage. Tomorrow. In a big way. And maybe appoint Thomas Piketty to the board of directors of Walmart.
But while higher wages are good, they are likely only to soften the blows still to come. What if the hyper-rich like being ever more hyper-rich and, with so many new ways to influence and control our political system and the economy, never plan to give up any of their advantages? What if they don’t want to share, not even a little more, not when it comes to the minimum wage or anything else?
The striking trend lines of social and economic disparity that have developed over the last 50 years are clearly no accident; nor have disemboweled unions, a deindustrialized America, wages heading for the basement (with profits still on the rise), and the widest gap between rich and poor since the slavery era been the work of the invisible hand. It seems far more likely that a remarkably small but powerful crew wanted it that way, knowing that a nation of fast food workers isn’t heading for the barricades any time soon. Think of it all as a kind of “Game of Thrones” played out over many years. A super-wealthy few have succeeded in defeating all of their rivals — unions, regulators, the media, honest politicians, environmentalists — and now are free to do as they wish.
What most likely lies ahead is not a series of satisfying American-style solutions to the economic problems of the 99%, but a boiling frog’s journey into a form of twenty-first-century feudalism in which a wealthy and powerful few live well off the labors of a vast mass of the working poor. Once upon a time, the original 99% percent, the serfs, worked for whatever their feudal lords allowed them to have. Now, Walmart “associates” do the same. Then, a few artisans lived slightly better, an economic step or two up the feudal ladder. Now, a technocratic class of programmers, teachers, and engineers with shrinking possibilities for upward mobility function similarly amid the declining middle class. Absent a change in America beyond my ability to imagine, that’s likely to be my future — and yours.
If I had a crayon I’d draw you a picture, but I think you don’t really need that at this point. None of this is accidental, some sort of invisible hand at work.
The inflation-adjusted net worth for the typical household was $87,992 in 2003. Ten years later, it was only $56,335, or a 36 percent decline. For the top 5 percent of Americans, household net worth increased 14 percent over the same 10 years.
Companies will continue to demand Federal, state and local governments keep the minimum wage as low as possible. The same corporate entities will then continue to have those low wages subsidized by the taxpayers. Companies will continue to spew out propaganda to convince those same taxpayers that people on public assistance are lazy cheats, and that low wages mean low prices. Capping wages at 2009 levels assures that any broad rise in societal prosperity will not reach low-wage workers, and there is no broad upward path for retail workers and fry cooks. It’s not about education, either: the percentage of low-wage workers with at least some college education has spiked 71 percent since 1979, to now encompass over 43% of all low-wage workers. Meanwhile more and more money will be hoovered up by an ever-concentrated group of the super wealthy, squeezing their workers tighter and tighter. Hey, how many miles can you drive on a gallon of blood?
In today’s America, even working full-time, at most jobs you can’t earn enough to live with government assistance. More and more of everything is owned by fewer and fewer people. If you look that stuff up in a reference book, it is called feudalism. It is our future, and, of course, thank you for shopping at Walmart!
“Our rights are subject to the government’s desire to allow us to exercise them.”
This is Hell! is a fascinating talk radio program on Chicago’s WNUR 89.3 FM, and podcast online. I spoke with them recently. Here’s what they had to say about the conversation:
From real life battlefields in real life Iraq to metaphorical battlefields in fictionalized Ohio, Peter Van Buren‘s books detail lives caught up in failing systems, both real (We Meant Well) and imaginary (his first novel: Ghosts of Tom Joad: A Story of the #99 Percent.)
In Peter’s third appearance on This is Hell!, he discusses how his years in Iraq inform his ideas about the current violence wrecking parts of the nation, how government surveillance in the U.S. has radically changed the character of American democracy, and the real world ghosts haunting the protagonist of his new book.
Have a listen to the full interview.
The FBI arrested a Colorado teenager on suspicion of attempting to support al Qaeda and the Islamic State of Iraq and the Levant (ISIL). The young woman was busted at the Denver International Airport as she attempted to board a plane for Frankfurt with an onward ticket to Turkey. Germany and Turkey are members of NATO, and allies of the United States. It is not a crime to fly there.
The FBI’s Joint Terrorism Task Force investigated the girl (pictured above) for roughly eight months before arresting her. Her crime? Supposedly she met a man online who identified himself as a 32 year old Tunisian terrorist associated with ISIL and with whom she built a romantic relationship. He encouraged her to travel to Syria to fight alongside him, because of course everyone you meet online is exactly who they say they are and especially guys who meet girls online never lie to them (there is at least some evidence that this whole thing jihad thing is just a trick to lure vulnerable foreign women into prostitution.)
The FBI’s “investigation” of all this included meeting with the young woman in person on a near-weekly basis for six months. The FBI also met with her parents, warning them of their daughter’s “radical beliefs.” When none of these sophisticated techniques were able to prevent the terror thingie, the feds moved in for the arrest. If convicted of whatever the hell she did, the girl could face up to 15 years in prison, a $250,000 fine or both.
The whole investigation started thanks to an alert Citizen. Law enforcement began looking into the terror girl after a security guard and pastor at the Faith Bible Chapel in Arvada, Colorado contacted police to report the girl had been wandering the campus taking notes. The girl also became “confrontational” with church staffers when they asked to see her notes. The guard thought she was suspicious and that she seemed to be “visiting the church in preparation for an attack.” It is unclear how whatever the woman was doing appeared to be in preparation for an attack.
Here’s the serious part: The girl was interviewed by an FBI special agent, at which point she said she was training in military tactics through a non-profit youth group called the U.S. Army Explorers and that she hoped to share what she learned with Islamic jihadi fighters. A few weeks later, she told the FBI agent she would be “ready to wage jihad in a year.” The suspect told the FBI, however, that her knowledge of Islam and jihad was based solely on her own research that she conducted on her laptop using Google.
The U.S. Army Explorers, where the girl was seeking training to enable her to survive on the battlefields of the MidEast alongside hardened terrorists, describes itself as a program that “exposes cadets to what career opportunities in the military are like, and provide them first hand knowledge and experience in the many military occupational skills… Our program is a part of the Learning for Life Explorer program with the Boy Scouts of America.” The group accepts cadets as young as age 13. It costs $85 to join, but that includes an ID card and uniform patches. The girl also told the FBI she planned to use her Army Explorer skills to “train Islamic Jihadi fighters in U.S. military tactics.”
The Price of Freedumb
So, in what was likely the worst online dating story of the year, the FBI launched an eight month investigation leading to an airport takedown. In between they spoke numerous times to the suspect, and her parents, and no doubt must have come to the conclusion that her chances of waging jihad were about the same as her chances of finding true love on the web.
But instead of advising her parents to take back their credit card, or wishing the young girl luck in her career at some truck stop, they bust her for basically planning to travel to Turkey– suspicion of attempting to support al Qaeda and the Islamic State of Iraq and the Levant (technically the charge was conspiracy to provide material support to terrorism.)
The really sad part, absent wrecking this girl’s already pathetic life, is that this case will no doubt now be counted among the many other stupid examples of how the government is protecting us from the terrorists in our midst.
BONUS: The fear-mongering idiots at ABC news described Turkey as “just hours away from the Syrian border.”
Earning $445 Per Second at NBC
Unlike most well-to-do young people who, after a decent education, take a series of unpaid internships and entry-level positions to begin working their way up some corporate ladder, Chelsea jumped more than a few rungs. Despite never having attended journalism school or otherwise having worked in the field, Chelsea was hired by NBC News to do feel-good stories as part of their “Making a Difference” series. Though the starting salary for such positions is already a chunky $100,000-200,000, Chelsea is being paid $600,000 a year for the same work.
Or less work. Here is a list of Chelsea’s recent NBC stories:
– June 10, NBC Nightly News, on diabetes.
– June 10, Today show, on a car accident in New Jersey.
– June 5, NBC Nightly News, General Motors safety scandal.
– June 4, Today show, missing Malaysia Airlines Flight 370.
– June 4, NBC Nightly News, about people pointing lasers at aircraft.
– June 3, NBC Nightly News, food-borne illnesses.
– June 2, Interviewed the Geico gecko, an animated character who sells insurance.
All told, in her almost three-year tenure at NBC, Chelsea has worked on all of 14 stories.
Business Insider calculated since starting work in November 2011, Chelsea earned about $26,724 for each minute she appeared on air, or $445 per second. As in one-two-three = $1335, there’s your month’s rent.
NBC has an eye for talent, at least the talent of children of important politicians. In 2009, it hired George W. Bush’s daughter Jenna to serve as a correspondent on the Today” show. In 2011, it hired Senator John McCain’s daughter Meghan as a contributor on MSNBC.
More Chelsea $$$$$$$$
But back to Chelsea. She told the New York Times in 2011 when hired by NBC she intended to donate most of the money she earned to the Clinton Foundation. In addition to her gig at NBC, Chelsea also serves Vice Chair of the recently renamed “Bill, Hillary and Chelsea Clinton Foundation,” where she was “a major force in steering her parents’ charitable work” in the final years of her mother’s time at the State Department.
Chelsea also benefits from a job as a board member for Barry Diller’s IAC/InteractiveCorp. Salary for Chelsea: $300,000. The board position also pays an annual retainer of $50,000 and a $250,000 grant of restricted stock.
Chelsea, though she only graduated with a master’s degree in 2010, started teaching graduate level classes two years later at Columbia University’s School of Public Health. Her exact salary is unknown. However, the average salary for a Columbia lecturer is $51,671.
Chelsea holds another academic post, salary unknown, as assistant vice provost for the Global Network University at New York University.
Chelsea has also presented an award to her mother at Diane Von Furstenberg’s International Women’s Day event and hosted her father’s 65th birthday at a Hollywood benefit for the Bill, Hillary and Chelsea Clinton Foundation with guests Lady Gaga and Bono.
Chelsea’s personal fortune is estimated at $15 million, most earned as a consultant at McKinsey & Company and by working for Avenue Capital Investment Group as a hedge fund manager. Chelsea and her husband live in a $10.5 million condominium in Manhattan.
Chelsea is only 34 years old and has already accomplished so much. What a bright future lies ahead! America is still a country where any child can grow up to someday become president.
When you are saying something true, pure, clean and right, you often do not need many words. Like most of the Bill of Rights, the Fifth Amendment to the Constitution is beautiful in its brevity. Americans may not “…be deprived of life, liberty, or property, without due process of law.”
There are no footnotes in the Fifth Amendment, no secret memos, no exceptions. Those things were unnecessary, because in what Lincoln offered to his audience as “a government of the people, by the people, for the people,” the government was made up of us, the purpose of government was to serve us, and the government was beholden to us. Such a government should be incapable of killing its own citizens without an open, public trial allowing the accused to defend him/herself.
Oh how times have changed.
Killing an American
On September 30, 2011 a U.S. drone fired a missile in Yemen and killed American Citizen Anwar al Awlaki, born in the United States. A few days later the U.S. also killed al Awlaki’s 16 year old American Citizen son. Al Awlaki had once been a friend of the American military, invited in the aftermath of 9/11 to speak and lunch at the Pentagon. A few years later, al Awlaki was connected by the same U.S. government to al Qaeda, apparently mostly as a propagandist who may or may not have taken on an online role in persuading other Westerners to join the cause.
In 2012 Attorney General Holder said of the al Awlaki killing and the Fifth Amendment “that a careful and thorough executive branch review of the facts in a case amounts to ‘due process’ and that the Constitution’s Fifth Amendment protection against depriving a citizen of his or her life without due process of law does not mandate a ‘judicial process.’” It was unknown at the time, but Holder was referring to a secret white paper prepared by the Office of the Legal Counsel laying out the legal justification for the U.S. government to kill one of its own citizens extrajudicially, in apparent violation of the Fifth Amendment.
A hallmark of Post-Constitutional America, of which the U.S. government killing its own citizens without due process by drone surely is a part, is the manipulation of existing rights and laws without just doing away with them. Unlike national security states and tyrannies of the past, which overtly declared constitutions and laws obsolete and crumpled up the parchment, America’s new state twists the old into something new, and sinister.
After a long legal battle to keep secret the underlying “legal” basis for its killing of al Awlaki (and others in the past, or to come?), the Obama administration released in June 2014 a redacted text of the Office of Legal Counsel’s white paper drawn up to justify the action. With some irony, the release of the 2010 document was facilitated by the Obama administration’s desire to placate senators reluctant to approve the memo’s author, David Barron, to serve on the First Circuit Court of Appeals (Barron was indeed approved.)
Reading the Kill Justification Paper: Death, With a Stroke of a Pen
Here’s what the kill white paper says in order to make legal the killing of an American Citizen by his/her government without trial (the full memo is here.)
The essential element for the kill to be legal, the document says, is “an informed, high level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States.” (Also, capture must be found to be unfeasible, and the kill must follow the existing laws of war.)
The rest of the justification simply flows from there in a perverse chain of logic: the president has the obligation to protect America, al Qaeda or its like are a threat, Congress has authorized war against al Qaeda, and being in al Qaeda is more relevant than whatever citizenship the target may hold or where s/he is located (“citizenship does not immunize the target.”) Basically, it is all simply an extension of the idea of self-defense. International borders and other nations’ sovereignty are not an issue if the U.S. determines the host nation is “unwilling or unable to suppress the threat posed by the individual targeted.”
The Balancing Test
The Fifth Amendment right to due process, and perhaps to a lesser extent, the Fourth Amendment right against unwarranted seizure (i.e., a life) are dismissed casually in the white paper by a claim that the U.S.’ interest in “forestalling the threat of violence and death to other Americans that arises” trumps any constitutional rights for the individual. This is described as part of the traditional Fifth Amendment “balancing process.”
The balancing process cited as conclusive enough to justify the extrajudicial killing of an American comes, according to the kill white paper, stems from a 1976 Supreme Court case, Mathews v. Eldridge, 424 U.S. 319 (1976), where the Court held that individuals have a statutorily granted property right in Social Security benefits, that the termination of those benefits implicates due process, but that the termination of those benefits does not require a pre-termination hearing. Stick with me on this.
The balance test for the Fifth Amendment to apply as laid out in that case has three components [notes added]:
(1) The importance of the private interest affected. [In a kill case, the private interest is the life of an American citizen]
(2) The risk of erroneous deprivation through the procedures used, and the probable value of any additional or substitute procedural safeguards. [In a kill case, since the American will be dead, the impossibility of ever "correcting" the mistake. The Court held that "If the risk of error is minimal, then the need for additional procedures declines. If the risk is high then additional procedures would be merited." So, with the potential of a recoverable error, less process is needed. The more serious a mistake might be if committed, the more process needed.]
(3) The importance of the state interest involved and the burdens which any additional or substitute procedural safeguards would impose on the state. [According to the kill white paper, the idea that killing the American saves potentially thousands of other Americans lies is the state's interest. The burden of the U.S. government to follow any procedural safeguards, such as a trial in absentia where the target could have his/her side presented by a lawyer, is not addressed in the kill white paper]
In short, the balancing test says that in some situations, where the government’s interest overshadows an individual’s interest, and the individual interest isn’t that big of a deal, and where a mistake by the government can be fixed, the full due process clause of the Fifth Amendment may not have to apply.
The kill white paper draws heavily on the case Hamdi v. Rumsfeld, in which the U.S. rendered from Afghanistan an American citizen and sought to detain him indefinitely without trial as an enemy combatant.
After a long legal battle that went to the Supreme Court, the three-part balance test of Mathews v. Eldridge was decided to apply to the case and allow the U.S. to limit– but not fully do away with as in the drone killings– the due process to be received. The most important point here is that despite limiting his rights, the Court was clear that the prisoner Hamdi should have a meaningful opportunity to challenge his enemy combatant status.
Interestingly, likely to avoid a court challenge to the conditions of this detention and the exposure of whatever details of his capture and possible torture might come out, the U.S. government released Hamdi without charge and forcibly sent him, an American citizen, to Saudi Arabia, and required him then to “voluntarily” renounce his U.S. citizenship. Of course the deportation and renunciation are themselves of dubious constitutionality; U.S. citizens have a right under the Fourteenth Amendment of the Constitution to return to U.S. territory after traveling abroad.
That the kill white paper makes much of the Hamdi case suggests the lack of sound legal argument. Claiming killing an American by his/her own government without trial is allowed by the balance test, the white paper ignores the fact that Hamdi was not killed. A mistake in his case can be largely corrected, possibly in the future as a result of a court appeal, simply by reinstating his U.S. citizenship and allowing him to return to the U.S.
A broader critical issue not addressed in the kill white paper is that Hamdi’s case deals with (albeit serious) administrative questions, such as should he be allowed a trial and if so under what conditions. The government never proposed a death sentence for Hamdi. The underlying case the kill white paper bases its whole argument on, Mathews v. Eldridge, deals with relatively routine administrative government procedures, and certainly not ones of life and death of a citizen. The case was of course about denied Social Security benefits.
What Do Words Even Mean Anymore?
With significant constitutional issues dispensed with via some dubious logic and creaky legal citations, the kill white paper returns to its base premise, that a kill is legal when “an informed, high level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States.”
The white paper does not identify what level of proof is needed to meet the test of “informed” and it does not explain who is and is not a “high level official of the U.S. government” for the purposes of killing an American.
The paper does spend a fair amount of time explaining how the standard dictionary definition of “imminent” does not apply here. The paper says for kill purposes the U.S. need not actually have “clear evidence that a specific attack on U.S. persons will take place in the immediate future.” Instead, imminent can mean a person such as al Awlaki is generally engaged in planning attacks that may or may not possibly be launched until years from now, or that may or may not happen at all. The paper says that since al Qaeda would prefer to continually attack the U.S., essentially any action, planning or forethought today, however fantastical or future-oriented, constitutes an “imminent” attack and allows for a legal kill of an American citizen by the government.
And if somehow all that is not enough, the white paper also invokes the “public authority justification.” This concept says that public authorities can sometimes violate the law– a cop can justifiably shoot and kill an armed bad guy in some circumstances, and it’s a lawful kill. By extension, the government of the United States can drone down a citizen because s/he is allegedly a member of al Qaeda. The white paper does not address the fact that police shootings in the U.S. are subject to investigation and judicial review, and cops who commit an unlawful kill can face punishment.
None of this Can be Challenged in Court
The white paper also makes clear its conclusions cannot be challenged in any court. Courts have almost always refused to intervene in cases of “foreign policy,” holding constitutionally that is the realm of the Executive in consultation as required with Congress. Killing Americans, the white paper says, is a foreign policy act and thus none of any courts’ business. The issue of the white paper citing several court decisions to justify the killings while claiming the killings are not a court matter is not addressed.
It should be obvious that the kill white paper, ostensibly the result of some of the best legal thinking available to the White House, wouldn’t get a C- for a first year law student. The arguments are weak at best, the legal cites and logic rarely directly support the rationale, and the entire document seems a shaky attempt to justify however it can a pre-determined premise. The vagueness of word usage, the key terms left undefined, the odd definitions of common words like “imminent” employed, all strain against reality.
Yet despite all this (and keep in mind portions of the paper were redacted, there may be more legal falsities not yet seen), the sixteen pages described above were considered enough in Post-Constitutional America for president Obama to justify pushing aside the Fifth Amendment, ignoring due process, and ordering the death of an American citizen.
Oh how times have changed.
Over this July 4th weekend, and as I see the images of Iraq’s unfolding civil war, sometimes I think I even recognize a place I had been, having spent a year in the midst of America’s Occupation there, 2009-2010. I was a State Department civilian, embedded with an Army brigade of some 3000 men and women far from the embassy and the pronouncements of victory and whatever bright lights Iraq might have had. I grow weary now of hearing people talk about America’s sacrifices, our investment, the need for more troops or air strikes, our blood and treasure spent to free Iraq, or whatever it was we were supposed to have gone there to do.
So many people say those things. But before another one says another thing, I wish they could have seen what I saw in Iraq. This.
Private First Class (PFC) Brian Edward Hutson (name changed), in Iraq, put the barrel of his M-4 assault rifle into his mouth, with the weapon set for a three-round burst, and blew out the back of his skull. He was college- aged but had not gone and would never go to college. Notice appeared in the newspapers a week after his death, listed as “non-combat related.” Of the 4,486 American military deaths in Iraq, 911 were considered “non-combat related,” that is, non-accidents, suicides. In 2010, as in 2009, the years I was in Iraq with PFC Hutson, more soldiers died by their own hand than in combat. Mental disorders in those years outpaced injuries as a cause for hospitalization. The Army reported a record number of suicides in a single month for June 2010. Thirty- two soldiers in all, more than one a day for the whole month, around the time PFC Hutson took his life.
The M-4 rifle PFC Hutson used to kill himself, successor to the M-16 of Vietnam fame, allows the shooter, with the flip of a switch, to choose to fire one bullet per trigger pull or three. Nobody knows whether PFC Hutson spent a long time or no time with the rifle barrel in his mouth, but he must have really wanted to be dead, because he chose three shots. The bullets exploded through his brain in sequence. He left his toilet kit in the shower trailer. He still had Clearasil in the bag. Rumor was he’d had trouble sleeping. I didn’t know him.
I heard about his death at breakfast and walked over to his sleeping trailer along with some others. I took a quick look inside and saw the fan spray of blood and brain on the wall, already being washed off by the Bangladeshi contractor cleaning crew KBR had brought to Iraq for the war. The bleach solution they used was smearing more than cleaning, and the Bangladeshis had little stomach to wring out the mop heads all that often. Blood like this smells coppery. Even if you’d never smelled pooled blood before, you didn’t have to learn what it was, you already knew something was wrong in this place, this trailer, this Iraq.
Death does not redeem or disgrace. It is just a mess and no one who deals with it thinks otherwise. Don’t ask poets or pastors, because they do not know that pieces of people still look a lot like people and that extreme violence leaves bodies looking nothing like the bodies you see in open caskets or on TV. In Iraq I saw a girl crushed when a wall collapsed, her face looking like a Halloween pumpkin a few days too late. There was a drowned man in an irrigation ditch, gray and bloated, no eyes. Fish had nibbled them. You saw that stuff in Iraq. It was how war works.
A week before Hutson’s suicide, another soldier lost his life. This soldier, a turret gunner, was killed when his vehicle unsuccessfully tried to pass at thirty-five miles per hour under a too-low bridge. The Army counted deaths by accident as “combat deaths,” while suicides were not. Under a policy followed by George W. Bush and in part by Barack Obama, the families of suicides did not receive a condolence letter from the President. Suicides do not pertain to freedom. They died of the war, but not in the war.
But if distinctions between causes of death were made at the Pentagon, that was not the case on the ground in Iraq. The death of any soldier reverberated through the base This was, after all, a small town, and nobody was left untouched. The comfort of ritual stood in for public expressions of actual feelings, which were kept private and close. And the ritual prescribed by regulation was the same, whether the death
was by suicide or in combat. The chapel had rows of chairs set up, much as it would in Hamilton, Ohio, or Marietta, Georgia for a wedding, only at the front of the room was a wooden box, made and brought to Iraq for this purpose, with holes for the US and the unit flag and a slot to stand the deceased’s rifle.
The remains of the deceased were likely already on their way home and not with us. This was not for PFC Hutson anyway, it was for us. The box holding the flags was made of plywood, stained and varnished like paneling, and reminded everyone of a B+ high school wood shop project. The dead man’s boots stood on either side of the rifle, with his helmet on top. It was fitting no one had cleaned the boots, because the presence of the dust and dirt wiped away a lot of the standardization of the ritual. Before the event started, the hum in the room was about future meetings, upcoming operations, food in the chow hall, the workaday talk of soldiers.
There was a program, done up on a word processor, with the official Army photo of the deceased, wearing a clean uniform, posed in front of an American flag— young, so young, you could see a few red pockmarks on the side of his face, a chicken pox scar on his forehead. All these photos showed a vacant stare, same as every high school graduation photo. The printed program was standard fare— some speeches, the chaplain leading the 23rd Psalm, and a final good-bye.
The speeches were strained because the senior officers who feel it important to speak at these events rarely knew, or could know among the many troops under them, the deceased. As with every other briefing they gave, the officers read words someone else wrote for them to give the impression of authority and familiarity. The dead man’s job had something minor to do with radios and most present couldn’t say much beyond that. The eulogy thus rang a bit hollow, but you reminded yourself that the words were not necessarily intended for you alone and that the Colonel may not have been the best man for the job. He was a responsible man, trying hard to do something impossible, and he probably felt bad for his lack of conviction. He did understand more of why we were all here, in Iraq, and that a task had to be done, and that he need not be
Pericles or Lincoln to do a decent job of it.
The last speaker was by tradition someone acquainted personally with the deceased, a friend if one could be found, a junior leader or coworker if not. In today’s ceremony, things were especially awkward. The dead man had taken his life and had done so after only a few months in the Army and even less time at this forward operating base in Iraq. Nobody really had befriended him, and this being the third suicide on the base made the whole thing especially grim. The ceremony felt rushed, like an over-rehearsed school play where the best performance had taken place the night before. Not a surprise really; many of the soldiers present were not long from their high schools.
The Army is a simple organization, a vast group of disparate people who come together for their own reasons, live in austere conditions, and exist to commit violence under bewildering circumstances. These ceremonies were how the Army healed itself, left alone in the desert with only a vague idea why any of us were there in a war that had already been going on for seven years. Some of the soldiers in the chapel were eleven years old when the Iraq war started, nine years old when 9/11 happened. This is how wars work.
But sometimes things surprised you, maybe because of low expectations, maybe because every once in a while somebody stood up and said just what needed to be said. A young Captain rose without notes. “I was his team leader but I never really knew him. Brian was new here. He didn’t have no nickname and he didn’t spend much time with us. He played Xbox a lot. We don’t know why he committed suicide. We miss him anyway because he was one of us. That’s all I have to say.”
The word that raised the sentence beyond simple declaration was “anyway.” It was important to believe we all meant something to one another because we were part of this. When it rained, we all got wet. We could hate the war, hate the president, hate the Iraqis, and we did, but we could not hate one another.
A longer occupation, more troops, air strikes or anything else won’t bring PFC Hutson back. He– we– will never know what he died for, but we can say with certainty what he did not die for. He did not die for freedom, he did not die for WMDs, he did not die for a politician’s re-election. Like the 4500 Americans and uncounted Iraqis who died, and continue to die, he died for a mistake. Wars work like that, cost like that.
The ceremony for PFC Hutson that day ended with the senior enlisted person calling the roll for the dead man’s unit. Each member answered, “Here, Sergeant Major” after his name was called. That was until the name called was the dead man’s. “Brian Hutson?” Silence. “Brian E. Hutson?” Silence. “Private First Class Brian Edward Hutson?” Silence. Brian was not there and almost none of us had known him but yes, today, at this place, we all missed him anyway.
The above is based in part on an excerpt from Peter Van Buren’s book about his year of the Iraq War, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People (American Empire Project). The story is true, thought the name of the deceased has been changed.
Film Director Oliver Stone (Platoon, Born on the Fourth of July, Wall Street, Untold History of the United States, W., Nixon, Salvador) endorsed We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People.
Have a look:
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